Alves v. Emerald Correctional Management LLC

Filing 12

ORDER granting 8 Defendant's Motion to Set Aside Entry of Default. Signed by Judge Frederick J Martone on 7/15/11.(DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Emerald Correctional Management LLC,)
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Defendant.
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Grisell Alves,

No. CV 11-00509-PHX-FJM
ORDER

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The court has before it defendant's motion to set aside entry of default (doc. 8),
plaintiff's response (doc. 9), and defendant's reply (doc. 11).

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Defendant moves to set aside the entry of default judgment pursuant to Rule 55(c),

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Fed. R. Civ. P. Defendant argues that the entry of default is the direct result of plaintiff's

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own "bad faith litigation tactics" (doc. 8 at 1). It is undisputed that the parties agreed that

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defendant would waive service of process. Defense counsel operated under this assumption.

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Plaintiff's counsel, however, apparently changed his mind and decided to serve the complaint

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via a process server. Plaintiff's counsel did not inform defense counsel of this change and

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defense counsel was unaware that a complaint had been served. When no answer was filed,

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plaintiff's counsel simply applied for an entry of default. Plaintiff's counsel argues that this

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conduct is irrelevant because defense counsel offers no explanation as to why she didn't

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know Emerald Corporation was served and file an Answer.

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We may set aside an entry of default for good cause shown. Rule 55(c), Fed. R. Civ.

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P. We consider: (1) the moving party's culpable conduct; (2) prejudice to the non-moving

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party; and (3) the moving party's meritorious defenses. TCI Group Life Ins. of N. Am. v.

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Knoebber, 244 F.3d 691, 696 (9th Cir. 2001). Good cause has been shown. Defense counsel

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reasonably acted under the assumption that a waiver of service would be sent, rather than

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formal service of process. When plaintiff's counsel changed his mind about the method of

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service, he should have informed defense counsel, or at least contacted defense counsel

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before simply filing an application for default. Defendant did not intentionally fail to answer.

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Given the early stage of this litigation, plaintiff will not be prejudiced by setting aside the

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default. Defendant also has demonstrated a meritorious defense.
THEREFORE, WE GRANT defendant's motion to set aside entry of default (doc.

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8).
DATED this 15th day of July, 2011.

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