Alliant Ventures IX, LLC, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1356

Alliant Ventures IX, LLC,
Respondent,

vs.

Jason Bebeau,
Appellant.

Filed March 17, 2025
Affirmed
Larkin, Judge

Anoka County District Court
File No. 02-CV-24-3058

Brian N. Niemczyk, Nicklaus A. Johnson, Hellmuth & Johnson, PLLC, Edina, Minnesota
(for respondent)

Jason Bebeau, Andover, Minnesota (pro se appellant)

Considered and decided by Larkin, Presiding Judge; Frisch, Chief Judge; and
Schmidt, Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the district court’s grant of default judgment against him. We
affirm.

2
FACTS
On April 5, 2024, respondent Alliant Ventures IX, LLC (Alliant) served appellant
Jason Bebeau with a summons and complaint, alleging that Bebeau, without authorization,
collected rent payments from tenants at an Alliant -owned property. Alliant requested
$30,400 “plus double damages” under Minn. Stat. § 604.14, subd. 1 (2024). On June 3,
Alliant moved for default judgment, asserting that Bebeau’s answer to the complaint was
due on April 26, that Bebeau failed to serve an answer, and that Bebeau therefore failed to
plead or otherwise defend within the time allowed.
On June 13, Bebeau filed an answer in the district court, but he did not serve it on
Alliant until June 17. In his answer, Bebeau claimed that he was told he was entitled to
collect rent payments. Bebeau also filed a memorandum in opposition to Alliant’s motion
for default judgment. In his memorandum, Bebeau asserted, in part, that Alliant was
“involved in preparing several separate cases against [Bebeau], so [he] has not had the time
to organize a response to [Alliant’s] statements, and thus has not fil ed another pleading in
this case due to excusable neglect.”
The district court held a hearing on Alliant’s motion. Alliant appeared with counsel.
Bebeau appeared pro se. On July 11, the district court filed an order granting Alliant a
$60,800 default judgment against Bebeau. The court concluded that Bebeau “did not
comply with Minn. R. Gen. Prac. 109” concerning “application for leave to answer or reply
after the time limited by statute or rule ,” and failed to satisfy the factors that allow a
defendant to avoid a default judgment. Judgment was entered the following day, and this
appeal followed.
3
DECISION
Bebeau challenges the district court’s grant of default judgment, arguing that he
satisfied the procedural requirements to serve his late answer and that he satisfied the
requirements necessary to avoid a default judgment.
Procedural Requirements
Under Minnesota law, a defendant generally must serve an answer within 21 days
after being served with the summons. Minn. R. Civ. P. 12.01. If a defendant fails to plead
or defend within the time allowed, “and that fact is made to appear by affidavit,” judgment
by default shall be entered against the defendant, as set forth in Minn. R. Civ. P. 55.01.
Bebeau does not dispute that he failed to timely serve his answer, but he argues that
he complied with Minn. R. Gen. Prac. 109.01 and 109.02, which permit a party to request
leave from the district court to serve an untimely answer. Under Minn. R. Gen. Prac.
109.01, “Any application for leave to answer or reply after the time limited by statute or
rule . . . shall be accompanied by a copy of the answer . . . and an affidavit of merits and
be served on the opposite party.” And under Minn. R. Gen. Prac. 109.02:
In an affidavit of merits made by the party, the affiant
shall state with particularity the facts relied upon as a defense
or claim for relief, that the affiant has fully and fairly stated the
facts in the case to counsel, and that the affiant has a good and
substantial defense or claim for relief on the merits, as the
affiant is advised by counsel after such statement and believes
true, and the affiant shall also give the name and address of
such counsel.

An affidavit shall also be made by a lawyer who shall
state that from the showing of the facts made by the party[,] the
lawyer believes that such party has a good and substantial
defense or claim for relief on the merits.
4

The district court concluded that Bebeau did not comply with the requirements of
these rules because he failed to supply the required affidavits. Bebeau argues that he “was
unrepresented by counsel at the time, so he was unable to get an affidavit from an attorney,
and instead submitted an affidavit from a paralegal .”1 He further argues that he “stated
clearly the facts relied on for a claim for relief and that he had a good claim for relief on
the merits.”
Under a strict reading of the rules, Bebeau’s filings were deficient. Bebeau did not
set forth his defense in an affidavit, and , as Bebeau acknowledges, he did not obtain an
affidavit from an attorney. Nonetheless, in granting Alliant’s motion for default, the
district court ultimately reasoned that “[e]ven if this [c]ourt could consider [Bebeau’s] late
[a]nswer, [Bebeau] failed to satisfy his burden” under the factors that allow a defendant to
avoid a default judgment. We therefore base our decision on the district court’s application
of those factors.
The Finden Factors
[D]enial of a motion for a default judgment is proper when four
requirements are met: defendant has a reasonable defense on
the merits; defendant has a reasonable excuse for his failure to
answer; defendant acted with due diligence after notice of the
entry of judgment; and no substantial prejudice will result to
other parties.

1 The paralegal’s affidavit did not satisfy the requirements of Minn. R. Gen. Prac. 109.02
5
Coller v. Guardian Angels Roman Cath. Church of Chaska , 294 N.W.2d 712, 715 (Minn.
1980). These factors are referred to as the Finden factors. See Finden v. Klaas , 128
N.W.2d 748, 750 (Minn. 1964) (establishing factors).
When determining whether to grant a motion for default judgment or a motion to
vacate a default judgment, the factors are substantially the same. Guillaume & Assocs.,
Inc. v. Don-John Co., 371 N.W.2d 15, 18 (Minn. App. 1985). The party seeking to avoid
a default judgment must satisfy all four factors. See Gams v. Houghton, 884 N.W.2d 611,
619-20 (Minn. 2016) (stating that to grant relief, “ the district court must consider, and
expressly find that a party satisfied , all four of the Finden factors” (quotation omitted));
Pedersen v. Daly, 238 N.W.2d 620, 622 (Minn. 1976) (stating that the party seeking relief
“is obliged to affirmatively establish ” all four factors); see also Black v. Rimmer , 700
N.W.2d 521, 526 (Minn. App. 2005) (stating that to obtain relief, “all four of the factors
must be present”), petition for rev. dismissed (Minn. Sept. 28, 2005).
Whether a default judgment should be reopened “is a matter largely within the
discretion of the [district] court, and that court’s decision will not be reversed unless such
discretion is abused.” Kosloski v. Jones, 203 N.W.2d 401, 403 (Minn. 1973); see also Cole
v. Wutzke , 884 N.W.2d 634, 639 (Minn. 2016) (“[W]e conclude that the district court
abused its discretion by failing to properly apply the Finden test in this case.”). Similarly,
“[t]he decision to grant or deny a motion for a default judgment lies within the discretion
of the district court, and this court will not reverse absent an abuse of that discretion.”
Black, 700 N.W.2d at 525.
6
Here, the district court thoroughly addressed each of the Finden factors, and
concluded that none of the factors favored denying default judgment:
[Bebeau] failed to offer any actual evidence supporting the
unverified allegations in his memorandum, so he does not have
a reasonable defense on the merits. [Bebeau] claims he was
busy attending to other matters and neglected to serve his
[a]nswer, but this is not a reasonable excuse for his failure to
answer because forgetfulness is not excusable neglect. He did
not act with due diligence because he waited until 73 days after
service of the [c]omplaint to serve his [a]nswer, which was also
l4 days after [Alliant] served its motion papers. [Alliant] will
suffer prejudice in the form of additional delay and expense.
While ordinarily this might not be enough to show substantial
prejudice, here there was an intentional ignoring of process by
[Bebeau], as e videnced by his admission that he neglected to
answer [Alliant’s] [c]omplaint to focus on other matters and
his misrepresentation to the [c]ourt that he served his [a]nswer
on April 9, 2024. [Bebeau] thus cannot satisfy his burden
under any [of] the Finden factors, let alone all four.

(Quotations and citations omitted.)
As to the need to show a reasonable defense on the merit s, a reasonable defense is
one that, if established at trial, presents a complete defense on the merits. See Cole, 884
N.W.2d at 63 7 (equating a “reasonable defense on the merits” with a “debatably
meritorious claim” (quotation omitted)); see also Finden, 128 N.W.2d at 750 (explaining
that self-defense is a “reasonable defense” because, “if it is established,” it is a complete
defense on the merits). “To satisfy this factor, the movant generally must provide specific
information that clearly demonstrates the existence of [a reasonable defense on the
merits].” Cole, 884 N.W.2d at 638 (quotation omitted). “Conclusory allegations in moving
papers are ordinarily insufficient.” Id.
7
In his answer, Bebeau claimed he was told that he was entitled to collect rent from
the tenants. And in his memorandum in opposition to default judgment, Bebeau stated that
he previously owned the property, sold it to Alliant, “served as a landlord,” and in that
capacity, “collected rent from the tenants who lived at that building” until September 2023.
The district court determined that Bebeau’s defense was based on conclusory allegations
and therefore deficient. We agree. Bebeau did not cite any evid ence supporting his
allegations. In addition, although Bebeau alleges that he was entitled to collect rent, he did
not allege that he was entitled to keep the rents that he collected.
As to Bebeau’s reasonable excuse for failing to timely answer Alliant’s complaint,
Bebeau generally alleged that he was busy with other cases and therefore “overlooked”
serving his answer. But as the district court correctly reasoned, f orgetfulness does not
constitute excusable neglect. Hill v. Tischer, 385 N.W.2d 329, 332 (Minn. App. 1986). As
to the requirement of due diligence, the district court noted that Bebeau “waited until 73
days after service of the [c]omplaint to serve his [a]nswer, which was also l4 days after
[Alliant] served its motion papers .” We cannot say that the district court abused its
discretion in determining that Bebeau “did not act with due diligence.”
Finally, as to prejudice to Alliant, “prejudice to the other party should not be
presumed nor inferred from the mere fact of delay; instead, there must be some particular
prejudice of such a character that some substantial right or advantage will be lost or
endangered if relief is granted.” Cole, 884 N.W.2d at 639 (quotations omitted). Here, the
district court concluded that Alliant’s additional expense and delay were sufficient to
establish prejudice because Bebeau’s failure to timely serve an answer was , in effect,
8
intentional. The district court relied on Hovelson v. United States Swim & Fitness, Inc. in
which we stated, “If it is perceived by the [district] court that there is intentional ignoring
of process, the additional expense must be viewed in a different light.” 450 N.W.2d 137,
142 (Minn. App. 1990) , rev. denied (Minn. Mar. 16, 1990) . But we also recognized that
“[o]rdinarily, added expense and delay alone are not sufficient to show prejudice.” Id.
Even if we assume, without deciding, that Bebeau met his burden to show that
Alliant would not be sufficiently prejudiced to justify the grant of a default judgment, the
error would be harmless because Bebeau failed to meet his burden on the first three Finden
factors. See Pedersen, 238 N.W.2d at 621-22 (stating, in an appeal from default judgment,
that all four criteria must be met). Harmless error must be ignored. Minn. R. Civ. P. 61.
In sum, “on appeal error is never presumed. It must be made to appear affirmatively
before there can be reversal. . . . [T]he burden of showing error rests upon the one who
relies upon it.” Loth v. Loth , 35 N.W.2d 542, 546 (Minn. 1949) (quotation omitted).
Bebeau has not shown that the district court abused its discretion in determining that he did
not satisfy the four Finden factors and therefore granting Alliant’s motion for default
judgment.
Affirmed.