The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Judge Is Watching, and Sometimes He's Skeptical
I'd been following Ha v. Nguyen (E.D. Tex.) because it's a libel case, involving claims of false allegations of (among other things) "being a 'Communist'"; but here's an order from yesterday that's about broader matters, by Judge J. Campbell Barker:
On December 6, 2022, plaintiffs sued defendant for defamation. Defendant did not answer the complaint by the deadline established by Federal Rule of Civil Procedure 12(a)(1)(A)(i). After the answer deadline passed, plaintiffs asked the clerk of court to enter defendant's default; the clerk did so shortly thereafter. Defendant now moves to set aside that entry of default.
Defendant alleges that there is good cause to set aside default. Defendant reports that she was unable to retain counsel and answer the complaint because, among other reasons, she was ill. To support that claim, she furnished to the court a doctor's note attesting to a serious COVID-related illness. That note, dated January 26, 2023—many weeks after defendant's deadline to respond to the complaint—speaks of defendant's being "very ill over this time period." But the note doesn't indicate any period.
Defendant is ordered to furnish to the court by August 9, 2023, a revised note signed by Kelsie Court, MD, identifying the period in which she was under Dr. Court's treatment for her COVID-19 related illness. At minimum, the note should state the exact date that treatment began and the date it ended. Defendant must furnish to Dr. Court this court order before the note is prepared.
Defendant is also ordered to submit to this court by August 9, 2023, an affidavit signed under penalty of perjury (1) attesting to any illness she had in December 2022, the time period of the illness, what medical help she sought for the illness, when she sought that help, and what medical help she actually received for the illness; (2) a description of the illness, noting the severity of the symptoms and the routine activities that the illness prevented; and (3) a list the dates and destinations of her travels from December 7, 2022, to December 29, 2022.
Defendant may also submit by August 9, 2023, any papers she wishes the court to consider that corroborate the claims made in her motion. Those papers must be accompanied by an affidavit attesting to their truth and accuracy.
It may well be, of course, that the defendant's assertions about her health were quite accurate; but the order is a reminder that, often, the judge is paying close attention to such assertions.
