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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

WINDOW WORLD, INC., )

)

Plaintiffs, )

) Cause No.: 1:12-cv-04329

-vs- )

) Honorable George W. Lindberg

DAVID HAMPTON and WINDOW WORLD )

OF CHICAGOLAND, LLC, )

. )

Defendants. )

DEFENDANTS’ MOTION TO SET ASIDE DEFAULT JUDGMENT

Come now Defendants David Hampton and Window World of Chicagoland, LLC, and, 

pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure, move this Court to set aside 

and vacate its Default Judgment of December 4, 2012. In support of said motion, Defendants 

state as follows:

1. This matter was filed by Plaintiff on June 4, 2012.

2. On June 11, 2012, Defendants signed Waivers of Service of Summons which would 

have required responsive pleadings to be filed on or before August 6, 2012.

3. On June 13, 2012, Plaintiff filed an Unopposed Motion to Consolidate this case with 

Case No. 12-cv-579, a related case filed by Defendants against Plaintiff and others.

4. On June 13, 2012, this Court issued its Finding of Relatedness Pursuant to Local Rule 

40.4 and requested that the Executive Committee order that this case be reassigned to 

it as a related case to Case No. 12-cv-579.

5. On June 14, 2012, the Executive Committee granted the request and reassigned this 

case to this Court as a related case.

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6. There was never an Order consolidating the two cases.

7. However, Defendants believed that the cases were consolidated and that their attorney 

was representing them in both cases. (See Affidavit of David Hampton, attached 

hereto as Exhibit A, ¶¶ 6-8).

8. On June 24, 2012, Defendants received an email from their attorney advising them 

that their attorney would file a Motion to Withdraw the following day. Defendants’ 

attorney further stated that she would continue to represent Defendants until the 

Motion to Withdraw was granted. Based upon the representations made by 

Defendants’ attorney, they believed she was still representing them in both cases until 

the Motion to Withdraw was granted.

1

 (Affidavit of David Hampton, ¶ 11). 

9. On June 25, 2012, Defendant David Hampton had a discussion with his attorney in 

which it was decided that Defendants would dismiss their claims without prejudice. 

(Affidavit of David Hampton, ¶ 12).

10. Defendants’ counsel sent Defendants an email later on June 25, 2012, in which she 

stated that she would not file the Motion to Withdraw pending dismissal of the case. 

It was Defendants’ understanding that if they dismissed their claims against Plaintiff 

in Case No. 12-cv-579, the claims in the related case filed by Window World against 

them would also be dismissed. (Affidavit of David Hampton, ¶ 12).

11. On June 29, 2012, Defendants received an email from their attorney which advised 

that the court had accepted the dismissal without prejudice. (Affidavit of David 

Hampton, ¶ 13).

 

1 Defendants do not intend to waive their attorney/client privilege and have not attached any emails as 

exhibits. Defendants will provide such emails for in camera inspection should the Court feel that the 

actual emails are needed to decide this motion.

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12. On July 12, 2012, Defendants received an email for their attorney stating that the 

request to dismiss all parties was granted. Defendants’ understanding was that the 

dismissal resolved both cases. (Affidavit of David Hampton, ¶ 14).

13. Defendants continued to believe that their attorney was representing them in both 

cases as there had never been a Motion to Withdraw filed and they never received any 

documentation which indicated they were unrepresented in this case. (Affidavit of 

David Hampton, ¶ 15).

14. Defendants did not file responsive pleadings by August 6, 2012, as they believed that 

the case had been resolved.

15. The Court set the initial status hearing in this matter on August 8, 2012. Defendants 

did not appear, either individually or through counsel, as they believed the case had 

been resolved. (Affidavit of David Hampton, ¶ 19).

16. Counsel for Plaintiff did appear at the status hearing and requested that a default 

judgment be entered.

17. The default judgment was entered and the matter set for hearing on Plaintiffs’ 

damages.

18. On October 3, 2012, Plaintiff filed its Motion for Default. (Doc. # 12)

19. On December 4, 2012, this court entered Plaintiff’s Final Judgment Order (Doc. #19).

20. Defendants have not willfully or intentionally failed to comply with the filing 

deadlines in this matter.

21. The confusion surrounding the consolidation of this matter with Case No. 12-cv-579, 

the Unopposed Motion to Consolidate filed by Plaintiff in Case No. 12-cv-579, 

communications from Defendants’ counsel that made it appear that Defendants were 

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being represented in this matter, and the ultimate Order granting the motion to 

dismiss without prejudice in Case No. 12-cv-579 all led Defendants to reasonably 

believe that no further action was required in this matter.

22. On July 17, 2013, while reviewing the 2013 Window World Franchise Disclosure 

Document, Defendant Hampton first became aware that a default judgment had been 

entered in this matter. (Affidavit of David Hampton, ¶ 25).

23. Defendant David Hampton immediately notified his new counsel of the default and 

plans were immediately made to prepare and file this motion.

24. Defendants have meritorious defenses to Plaintiff’s claims as evidenced by the Courts 

Opinion denying, in part, Plaintiff Window World’s Motion to Dismiss filed in Case 

No. 12-cv-579.

WHEREFORE, for the foregoing reasons, Defendants pray this Court grant their Motion 

to Set Aside Default Judgment and set aside and vacate the judgment entered December 4, 2012 

(Doc. #19).

Respectfully submitted,

LAW OFFICE OF JONATHAN E. FORTMAN, LLC

 By /s/ Jonathan E. Fortman_________________

Jonathan E. Fortman #40319

Attorney for Defendants

250 St. Catherine Street

Florissant, Missouri 63031 

(314)522-2312 - Telephone

(314)524-1519 - Facsimile

E-mail: jef@fortmanlaw.com

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CERTIFICATE OF SERVICE

A true and accurate copy of the foregoing has been served upon all parties this 29th day 

of July, 2013, by operation of the courts electronic filing system

____/s/ Jonathan E. Fortman__________

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