Lowery v. Barcklay et al

Filing 36

ORDER that Plaintiff's 15 , 18 Motions for Default Judgment are DENIED; Defendant's 23 Motion to Set Aside Default is GRANTED; Defendant's 24 Motion for Leave to File an Untimely Answer is GRANTED; and the Clerk of the Court is directed to immediately file the defendant's 25 Lodged Proposed Answer. Signed by Senior Judge Robert C Broomfield on 1/6/2014.(LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christian Dale Lowery, Plaintiff, 10 11 12 No. CV-12-01625-PHX-RCB ORDER v. Unknown Barcklay,1 et al., 13 Defendants. 14 15 Introduction 16 In this prisoner civil rights action, brought pursuant to 42 U.S.C. § 1983, pro se 17 plaintiff inmate Christian Dale Lowery alleges that defendant Barcklay was deliberately 18 indifferent to his “medical needs” in violation of the Eighth Amendment’s prohibition 19 against cruel and unusual punishment.2 Co. (Doc. 1) at 4,3 ¶ 4. On February 14, 2013, 20 21 22 23 24 25 26 27 28 1 The record is unclear as to the correct spelling of the defendant’s last name. Throughout her response, the defendant’s last name is spelled as it is in the caption – “Barcklay.” However, while her supporting declaration is that of “Karen Barcklay[,]” the initial sentence states “Karen Barklay[,]” as does the signature line. Barcklay Decl’n (Doc. 23-1) at 2:11-12; 2:16; and 3:22. The court is unable to decipher the defendant’s signature to verify how she spells her name. So, for now, the court will spell the defendant’s last name as it appears in the caption and throughout the defendant’s response, i.e., “Barcklay.” 2 The court dismissed plaintiff’s only other claim without prejudice to renew. Ord. (Doc. 3) at 5:14-15, ¶ (1). 3 For uniformity and ease of reference, all citations to page numbers of docketed items are to the page assigned by the court's case management and electronic case filing (CM/ECF) system, and not to the plaintiff’s handwritten page numbers. 1 defendant Barcklay was personally served with the summons and complaint in this 2 action. (Doc. 6). When the defendant did not timely answer or otherwise respond to the 3 complaint, on April 12, 2013, nearly two months after service, the plaintiff filed a 4 declaration for entry of default. Three days later, on April 15, 2013, the Clerk of the 5 Court entered default as to defendant Barcklay pursuant to Fed.R.Civ.P. 55(a). (Doc. 12). 6 Shortly thereafter, on April 24, 2013, pursuant to Fed.R.Civ.P. 55(b)(1),4 plaintiff 7 Lowery filed a motion for entry of a default judgment against defendant Barcklay in the 8 amounts of $90,000.00 for compensatory damages, $150,000.00 in punitive damages, and 9 $350.00 for plaintiff’s filing fee. Mot. (Doc. 15) at 2. On June 3, 2013, the plaintiff filed 10 a second nearly identical motion for entry of default judgment against defendant Barcklay 11 (Doc. 18). 12 While those two motions were pending, the Honorable Lawrence O. Anderson, a 13 Magistrate Judge in this District, “order[ed] Defendant and the Arizona Attorney 14 General’s Office to show cause why a default judgment should not be entered against 15 Defendant.” Order to Show Cause and Order (“OSC”) (Doc. 19) at 5:16-17. The 16 defendant timely filed her response to that OSC, which she combined with a motion to set 17 aside the entry of default pursuant to Fed.R.Civ.P. 55(c). (Docs. 22 and 23). 18 Magistrate Judge permitted, the plaintiff filed a reply to the defendant’s response to the 19 OSC (Doc. 35) and a response to the defendant’s motion to set aside the default (Doc. 20 29). As the Because the Magistrate Judge expressly held plaintiff’s two default judgment 21 22 23 4 24 25 26 27 28 This particular subsection governs entry of default judgment by the clerk “[i]f the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation[.]” Fed.R.Civ.P. As the Magistrate Judge correctly pointed out, plaintiff Lowery is seeking non-liquidated 55(b)(1). damages, that is, damages which are “ [in]capable of ascertainment from definite figures contained in documentary evidence or in detailed affidavits[.]” OSC Ord. (Doc. 19) at 4:13-14 (quoting Holtsinger v. Briddle, 2007 WL 1080112, at *2 (E.D.Cal. April 4, 2007)). When seeking a default judgment as to such damages, a party must apply to the court, as opposed to the clerk and must “‘prov[e] up’” those nonliquidated damages “‘through an evidentiary hearing or some other means.’” Id. at 4:15 (quoting Holtsinger, 2007 WL 1080112, at *1). Consequently, plaintiff Lowery should have relied upon Fed.R.Civ.P. 55(b)(2) and not (b)(1). Especially because the plaintiff is pro se, and there is absolutely no prejudice to the defendant, the court can easily overlook his cite to the wrong subsection of Rule 55(b). -2- 1 motions “in abeyance pending any response to th[at] [OSC][,]” OSC (Doc. 19) at 7:10- 2 11 (emphasis omitted), those motions (Docs. 15 and 18) are currently pending before this 3 court, as well as defendant Barcklay’s motion to set aside the entry of default (Doc. 23). 4 Simultaneously with the filing of her motion to set aside entry of default, the 5 defendant filed a motion for leave to file an untimely answer (Doc. 24), and lodges her 6 proposed answer (Doc. 25). The court will address this pending motion as well. For the 7 reasons set forth below, the court DENIES plaintiff’s motions and GRANTS the 8 defendant’s motions. Background 9 10 As the Magistrate Judge ordered, defendant Barcklay, through the Arizona 11 Attorney General’s Office, timely responded to the OSC as to why a default judgment 12 should not be entered against the defendant. In her supporting declaration, defendant 13 Karen Barcklay explains what transpired on February 14, 2013, after she was served with 14 the summons and complaint in this action. 15 working for Wexford Health Services which contracted with the Arizona Department of 16 Corrections (“ADC”) to provide health services to inmates housed in ADC facilities. 17 Barcklay Decl’n (Doc. 23-1) at 2:19-20, ¶ 2. 18 complaint in this action, defendant Barcklay declares that she “was told by Belen 19 Briseno, an Administrative Assistant with Wexford, that Cyndy Hale, a Wexford 20 Facilities Health Administrator (“FHA”) instructed that service packets were to be sent to 21 Wexford.” Id. at 2:24-25, ¶ 3. At that time, defendant Barcklay was When she received the summons and 22 Because “[t]hat information was consistent with [her] previous practice at 23 Wexford[,]” defendant Barcklay “sent the service packet to the Wexford FHA” to be 24 forwarded “to the appropriate person at Wexford[.]” 25 Barcklay also “informed” the Wexford FHA that she “was working for the ADC at the 26 time of the allegations in th[is] lawsuit.” Id. at 3:3-4, ¶ 4. After “acknowledg[ing]” 27 receipt of the service packet, the Wexford FHA “indicated” to defendant Barcklay that 28 “she would take care of it.” Id. at 3:4, ¶ 4. -3- Id. at 3:1-3, ¶ 4. Defendant “To the best of [her] knowledge[,]” 1 defendant Barcklay explains that “the service packages at that time were directed to 2 Michael Bodek at Wexford for distribution to the appropriate attorneys for defense or 3 forwarded to ADC, if the staff member was employed by ADC at the time of the incident 4 underlying the lawsuit.” Id. at 3:5-8, ¶ 5. 5 Defendant Barcklay claims that she did not hear anything “more about this lawsuit 6 until mid-June 2013 when [she] was contacted by an Arizona Assistant Attorney General 7 and received a copy of the [OSC] in the mail.” Id. at 3:9-11, ¶ 5. Throughout this time, 8 defendant Barcklay “had no reason to believe [that] this lawsuit was not being properly 9 defended.” Id. at 3:12, ¶ 7. Indeed, she had previously “followed Wexford’s lawsuit 10 procedure” described above without incident. Id. at 3:13, ¶ 7. In addition, defendant 11 Barcklay notes that “[i]t [wa]s not unusual to have long periods of time without 12 communications with [her] attorneys after [she] receive[s] a lawsuit and deliver[s] it to 13 the appropriate people under Wexford company procedure or ADC policy when [she] 14 was employed by ADC.” Id. at 3:13-16, ¶ 7. From defendant Barcklay’s standpoint, the 15 foregoing shows that she has “not taken any action to delay or disrupt this litigation [.]” 16 Id. at 3:17, ¶ 8. Moreover, defendant Barcklay “believe[s] that the events resulting in the 17 entry of default against [her] . . . were completely out of [her] control.” Id. at 3:17-19, ¶ 18 8. 19 To support her motion to set aside the entry of default, defendant Barcklay also is 20 relying upon the declaration of Katherine Perez, an Executive Staff Assistant in ADC’s 21 legal services section. In her declaration, Ms. Perez outlines that section’s procedure for 22 processing newly commenced lawsuits in which ADC employees are named parties. If 23 an ADC employee is served or has delivered to them “any legal paperwork[,]” they are 24 “required to send” such paperwork to the “ADC’s legal services section.” Perez Decl’n 25 (Doc. 23-1) at 5:20-21, ¶ 2. 26 summons[es] or complaints[,]” Ms. Perez “enters the information in a central database to 27 keep track of these matters[.]” 28 “forward[ed] . . . to the appropriate party to respond, typically the Arizona Attorney When ADC’s legal services section receives any “new Id. at 5:22-23, ¶ 3. -4- That information is then 1 General’s Office.” Id. at 5:24-25, ¶ 3. 2 Perez declares that there is “no record of” ADC’s legal services section “having received 3 this lawsuit, . . . , from any source prior to June 18, 2013.”5 Id. at 6:1-3, ¶ 4. 4 upon the foregoing, defendant Barcklay argues that she is entitled to have the entry of 5 default against her set aside as Rule 55(c) permits. 6 motion first because if she prevails, the plaintiff’s motions for entry of default judgment 7 will be rendered moot. 8 I. Setting Aside Entry of Default 9 After searching the “lawsuit database[,]” Ms. Based The court will address this defense Rule 59(c) allows a court to set aside an entry of default by the Clerk of the Court 10 “for good cause[.]” Fed.R.Civ.P. 59(c). “To determine ‘good cause,’ a court must 11 ‘consider three factors: (1) whether [the party seeking to set aside the default] engaged in 12 culpable conduct that led to the default; (2) whether [it] had [no] meritorious defense; or 13 (3) whether reopening the default judgment would prejudice’ the other party.” United 14 States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th 15 Cir. 2010) (quoting 16 originating from Falk v. Allen, 739 F.2d 461 (9th Cir. 1984), “are disjunctive, such that a 17 court may decline to vacate an entry of default upon a finding of any of the factors.” See 18 Comercializadora Recmaq v. Hollywood Auto Mall, LLC, 2013 WL 494476, at *2 19 (S.D.Cal. Feb. 6, 2013) (citing Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 20 1091 (9th Cir. 2011)) (other citation omitted). “Nonetheless, a district court is not, as a 21 matter of law, required to deny a motion to set aside entry of default upon a finding of 22 any of the factors.” Id. (citing Brandt, 653 F.3d at 1111). 23 “where timely relief is sought from a default and the movant has a meritorious defense, 24 doubt, if any should be resolved in favor of the motion to set aside the default so that 25 cases may be decided on their merits.” O’Connor v. Nevada, 27 F.3d 357, 364 (9th Cir. 26 1994) (internal quotation marks and citation omitted). Franchise Holding II, 375 F.3d at 925-26). These factors, By the same token though, 27 5 28 Citing to Ms. Perez’s declaration, the defendant indicates that “she received a copy of this lawsuit by email[,]” Mot. (Doc. 23) at 3:6-7 (citation omitted), but her declaration does not mention how she eventually received notice of this lawsuit. -5- 1 Significantly, the Falk factors are “more liberally applied” where, as here, a party 2 is seeking to set aside an entry of default pursuant to Rule 55(c). See Mesle, 615 F.3d at 3 1091 n. 1 (quoting Cracco v. Vitran Exp., Inc., 559 F.3d 625, 631 (7th Cir. 2009) 4 (quotations and citations omitted)). “This is because in the Rule 55 context there is no 5 interest in the finality of the judgment with which to contend.” Id. (citing Hawaii 6 Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986)). Keeping with its 7 “oft stated commitment to deciding cases on the merits whenever possible[,]” the Ninth 8 Circuit in Mesle reiterated that “‘judgment by default is a drastic step appropriate only in 9 extreme circumstances[.]’” Id. at 1091 (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 10 1984)) (other citations omitted). Mindful of the foregoing, along with “the fact that a 11 district court’s discretion is especially broad when, as in this case, it is entry of default 12 that is being set aside, rather than a default judgment,” the court will discuss in turn each 13 of the three Falk “good cause” factors enumerated above. See Brady v. United States, 14 211 F.3d 499, 504 (9th Cir. 2000) (internal quotation marks and citation omitted). In so 15 doing, the court also bears in mind that the burden is on defendant Barcklay, as “[t]he 16 party seeking to vacate the entry of default” to “demonstrat[e] that these factors favor 17 doing so.” Zoom Elec. Inc. v. Int’l Broth. of Electrical Workers, 2013 WL 192515, at *2 18 (N.D.Cal. Jan. 27, 2013) (citing TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 19 696 (9th Cir.), overruled on other grounds, Egelhoff v. Egelhoff ex. rel. Breiner, 532 U.S. 20 141, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001)). 21 A. Culpable Conduct 22 Turning to the first Falk factor, the defendant’s potentially culpable conduct, the 23 Ninth Circuit in TCI Group indicated that “a defendant’s conduct is culpable if [s]he has 24 received actual or constructive notice of the filing of the action and intentionally failed to 25 answer.” TCI Group, 244 F.3d at 697 (emphasis in original, citation and quotation 26 marks omitted). “[I]n this context the term ‘intentionally’ means that a movant cannot 27 be treated as culpable simply for having made a conscious choice not to answer; rather, to 28 treat a failure to answer as culpable, the movant must have acted with bad faith, such as -6- 1 an ‘intention to take advantage of the opposing party, interfere with judicial 2 decisionmaking, or otherwise manipulate the legal process.’” Mesle, 615 F.3d at 1092 3 (quoting TCI Group, 244 F.3d at 697). 4 defendant's conduct was culpable for purposes of the [good cause] factors where there is 5 no explanation of the default inconsistent with a devious, deliberate, willful, or bad faith 6 failure to respond.” Id. at 1092 (quoting TCI Group, 244 F.3d at 697). 7 explanation, the defendant assumes that the TCI Group standard applies here. The Ninth Circuit has “typically held that a With no 8 The court would be remiss, however, if it did not acknowledge a second line of 9 Ninth Circuit cases announcing “a more stringent standard,” whereby “a defendant’s 10 conduct is culpable if . . . she ‘has received actual or constructive notice of the filing of 11 the action and failed to answer.’” AF Holdings LLC v. Buck, 2013 WL 79949, at *3 12 (E.D.Cal. Jan. 4, 2013) (quoting Franchise Holding II v. Huntington Rests. Group, Inc., 13 375 F.3d 922, 926 (9th Cir. 2004)) (other quotation marks and citation omitted). More 14 recently, in Mesle, “the Ninth Circuit clarified that the more stringent Franchise Holdings 15 approach does not represent ‘the ordinary standard for Rule 55(c) and 60(b) motions.’” 16 U.S. v. $35,017 in U.S. Currency, 2010 WL 3619794, at *3 (N.D.Cal. Sept. 9, 2010) 17 (quoting Mesle, 615 F.3d at 1093). 18 Ninth Circuit has “never applied” Franchise Holding II “to deny relief in the context of 19 such motions except when the moving party is a legally sophisticated entity or 20 individual.” Mesle, 615 F.3d at 1093 (citing, inter alia, Franchise Holding II, 375 F.3d 21 at 924 (notice of action received by counsel of company that later tried to set aside the 22 default)). The Mesle Court also opined that “[i]t is possible to reconcile the language in 23 Franchise Holding II with the standard in TCI Group.” Id. “The panel suggested that the 24 tougher standard from Franchise Holding II potentially applies when the defaulting party 25 is legally sophisticated or represented by counsel because ‘[w]hen considering a legally 26 sophisticated party's culpability in a default, an understanding of the consequences of its 27 actions may be assumed, and with it, intentionality.’” AF Holdings, 2013 WL 79949, at 28 *4 (quoting Mesle, 615 F.3d at 1093). The Mesle Court did not “need [to] determine, “[I]n fact, the Mesle Court pointed out that the -7- 1 however, whether the Franchise Holding II standard applies to more than sophisticated 2 parties represented by counsel who may be presumed to be aware of the consequences of 3 their actions.” Mesle, 615 F.3d at 1093. Instead, in Mesle the Ninth Circuit found it 4 “sufficient to observe that Mesle is not a lawyer and that he was unrepresented at the time 5 of the default[.]” Id. On that basis, the Ninth Circuit found that “the proper standard to 6 apply was that of TCI Group.” Id. 7 Because defendant Barcklay is not a lawyer and was not represented when the 8 Clerk entered default in this action, the court finds that, as in Mesle the TCI Group 9 “intentional culpability” standard applies here. Applying that standard, the court has 10 little difficulty finding that defendant Barcklay’s conduct was not culpable. Despite 11 plaintiff Lowery’s contrary protestations, there is no evidence that defendant Barcklay 12 acted in bad faith so as to support a finding of culpable conduct. 13 In response to the defendant’s motion to set aside the entry of default, plaintiff 14 Lowery specifically opted not to challenge the defendant’s legal arguments or “alleged 15 facts[,]” instead deferring to this court’s assessment as to the validity of both. Resp. 16 (Doc. 29) at 3. In his reply to the OSC (lodged the same day as his response), however, 17 the plaintiff inconsistently abandoned the deferential tone of his response. In his reply, 18 the plaintiff “disagrees” with defendant Barcklay’s assertion that the entry of default was 19 “completely out of her control.” 20 Barcklay’s declaration, the plaintiff claims that she was aware that any legal documents 21 served upon her were to be delivered to ADC’s legal services section. The plaintiff thus 22 accuses defendant Barcklay of “passing the buck[,]” when she forwarded the service 23 packet in this case to a Wexford FHA. See Reply (Doc. 35) at 5, ¶ II (B). Reply (Doc. 35) at 4. Referencing defendant 24 The plaintiff is misconstruing defendant Barcklay’s declaration. There is nothing 25 in that declaration indicating that defendant Barcklay knew that service packets had to be 26 delivered to ADC’s legal services section. What defendant Barcklay actually stated is, 27 “[t]o the best of my knowledge the service packages at that time were directed to Michael 28 Bodek at Wexford for distribution to the appropriate attorneys for defense or forwarded -8- 1 to ADC, if the staff member was employed by ADC at the time of the incident underlying 2 the lawsuit.” Barcklay Decl’n (Doc. 23-1) at 3:5-8, ¶ 5. In any event, it is clear from her 3 declaration that at the time of service defendant Barcklay was employed by Wexford. It 4 is equally clear that when she received the service packet in this case, defendant Barcklay 5 complied with her employer’s procedures in that regard. Such compliance can hardly be 6 said to rise to the level of culpable conduct. This is all the more so considering the 7 complete lack of evidence that defendant Barcklay’s failure to timely answer allowed her 8 “to take advantage of the opposing party[.]” See Mesle, 615 F.3d at 1093 (internal 9 quotation marks and citation omitted). Nor did her failure to timely answer result in 10 defendant Barcklay “interfere[ing] with judicial decisionmaking, or otherwise 11 manipulate[ing] the legal process.” 12 culpable conduct factor weighs in favor of setting aside the entry of default here. See id. Consequently, the court finds that the 13 B. Meritorious Defense 14 The second Falk factor is whether defendant Barcklay has a meritorious defense. 15 “‘A party in default . . . is required to make some showing of a meritorious defense as a 16 prerequisite to vacating an entry of default.’” 17 Talulah, 2012 WL 4510692, at *3 (D.Nev. Sept. 28, 2012) (quoting Haw. Carpenters' 18 Trust Funds, 794 F.2d at 513). “A meritorious defense is one which, if proven at trial, 19 will bar plaintiff's recovery.” 20 defendant's burden is “minimal.” Mesle, 615 F.3d at 1094). “All that is necessary to 21 satisfy the ‘meritorious defense’ requirement is to allege sufficient facts that, if true, 22 would constitute a defense[.]” 23 allegation [is] true is not to be determined by the court when it decides the motion to set 24 aside the default.” Id. (internal quotation marks and citation omitted). “Rather, that 25 question would be the subject of the later litigation.” Id. (internal quotation marks and 26 citation omitted). 27 possibility that the outcome of the suit after a full trial will be contrary to the result 28 achieved by the default’” Zoom Electric, 2013 WL 192515, at *4 (quoting Haw. Id. Chrome Hearts, LLC v. Boutique (quotation marks and citation omitted). The Id. Importantly, “the question whether the factual “The underlying concern ‘is to determine whether there is some -9- 1 Carpenters' Trust Funds, 794 F.2d at 513). 2 At the same time though, “a ‘mere general denial without facts to support it’ is not 3 enough to justify vacating a default or default judgment.” Id. (quoting Franchise Holding 4 II, 375 F.3d at 926) (other quotation marks and citation omitted); see also Chrome 5 Hearts, 2012 WL 4510692, at *3 (quoting Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th 6 Cir. 1988) (other quotation marks and citation omitted) (“‘[M]ere legal conclusions, 7 general denials, or simple assertions that the movant has a meritorious defense are, 8 however, insufficient to justify upsetting the underlying judgment.’”) So, for example, in 9 the context of setting aside a default judgment, the Ninth Circuit in Franchise Holding II, 10 375 F.3d 922, held that the meritorious defense prong was not met where the party did 11 not “present the district court with specific facts that would constitute a defense[;]” and 12 instead “offered only conclusory statements that a dispute existed.” Id. at 926 (citing 13 Madsen, 419 F.2d at 6). 14 supporting facts because “‘reopening of the case in the absence of some showing of a 15 meritorious defense would cause needless delay and expense to the parties and court 16 system.’” 17 Funds, 794 F.2d at 513). A defendant cannot rely upon a general denial without Chrome Hearts, 2012 WL 4510692, at *3 (quoting Haw. Carpenters’ Trust 18 In the present action, the plaintiff alleges that on March 14, 2011, he injured his 19 hand while working as a plumber while housed at ADC’s Yuma facility. Co. (Doc. 3) at 20 3, ¶ 3. Initially, the plaintiff was seen by the on-call physician who, among other things, 21 sutured the plaintiff’s wound. Id. From that point on, according to the plaintiff, he was 22 “wholly depend[e]nt on Dr. Barcklay for [his] medical care.” Id. Plaintiff Lowery 23 claims that he “made 9 contacts with health services seeking medical attention for his 24 injured hand.” 25 complaints about his injured hand, including reinjury. Id. Id. During those contacts, allegedly the plaintiff made various 26 On April 19, 2011, the plaintiff alleges that defendant Barcklay notified him that 27 “she had ‘put in a request for an ortho[pedic] eval[][uation][,]’” which occurred on May 28 5, 2011. Id. at 3, ¶ 3. After concluding that the plaintiff had severed his tendon, the - 10 - 1 plaintiff claims that the orthopedic surgeon informed him that “because so much time had 2 lapsed between [his] injury, [the] changes for a success[s]ful surgery and recovery were 3 greatly diminished.” Id. at 4, ¶ 3. 4 2011.6 Id. Complaining of diminished capacity to his hand and pain and suffering, the 5 plaintiff alleges that defendant Barcklay was “deliberate[ly] indifferen[t] to [his] medical 6 needs” by failing to “adequate[ly] and timely” provide him with medical care for his 7 injured hand. Id. at 4, ¶ 4; and at 3, ¶ 4. The plaintiff had surgery on his hand on June 6, 8 Claiming that she “will present evidence that she responded reasonably to the 9 medical ‘risk’ presented by Lowery[,]” not that she has, defendant Barcklay argues that 10 she has a meritorious defense to the plaintiff’s claim. See Resp. (Doc. 23) at 5:20-21 11 (emphasis added). Much like the “general proclamation” in Zoom Electric, 2013 WL 12 192515, at *5, that the defendant “would be able to establish the necessary facts to defend 13 himself[,]” the court finds that the foregoing “is not enough to justify” vacating the entry 14 of default here. See id. (emphasis added). 15 “there are substantial defenses and factual issues here and the facts in support of [her], if 16 true, would be a defense” also does not satisfy her burden as to the meritorious defense 17 element of good cause. See Resp. (Doc. 23) at 5:22-23 (citation omitted). Further, the defendant’s bald assertion that 18 Defendant Barcklay accurately notes that the complaint does not allege that she 19 had any knowledge of the plaintiff’s repeated requests for medical care. That omission, 20 without more, does not satisfy her burden of showing that she has a meritorious defense, 21 however. 22 evaluation was conducted shortly after” she requested it. Resp. (Doc. 23) at 5:12-13. 23 Again, without more, this bare assertion does not show that the defendant has a 24 meritorious defense to the plaintiff’s deliberate indifference claim. The defendant’s 25 unsubstantiated assertions that: (1) ADC “physicians do not schedule appointments, nor 26 typically initially respond to inmate complaints[;]” and (2) “[s]uch responses are done by The defendant fares no better by noting that the plaintiff’s “orthopedic 27 6 28 The complaint alleges June 6, 2012, but obviously that is an error as the Medical Grievance Appeal indicates that the plaintiff had his surgery on June 6, 2011, which is completely consistent with the time frames in the complaint. See Reply (Doc. 35), exh. D at 20, ¶ 4. - 11 - 1 medical staff, who notify the physician if something can be done without an examination 2 or set up an appointment[]” also do not advance her argument that she has a meritorious 3 defense.7 4 reasons just discussed, the court finds that the meritorious defense factor favors the 5 plaintiff and not the defendant. Thus, although the defendant’s burden is minimal at this juncture, for the 6 C. Prejudice 7 “To be prejudicial, the setting aside of a judgment must result in greater harm than 8 simply delaying resolution of the case.” Mesle, 615 F.3d at 1095 (internal quotation 9 marks and citation omitted). Yet, in the present case, that is the plaintiff’s sole argument 10 against setting aside the entry of default. Plaintiff Lowery claims prejudice because he 11 has been “waiting for the defendant’s answer since last year.” Reply (Doc. 35) 11. 12 However, because there has been no showing that “the delay . . . result[ed] in tangible 13 harm such as loss of evidence, increased difficulties of discovery, or greater opportunity 14 for fraud or collusion[,]” and because the plaintiff has not shown that his “ability to 15 pursue his claim will be hindered[,]”this factor favors granting the defendant’s motion to 16 set aside the entry of default. 17 marks and citation omitted). See TCI Group, 244 F.3d at 701 (internal quotation 18 In sum, because two of the three Falk factors demonstrate “good cause,” the court 19 grants defendant Barcklay’s motion to set aside the Clerk’s entry of default. See Chrome 20 Hearts, 2012 WL 4510692, at *4 (granting defendant’s motion to set aside entry of 21 default. This result is further compelled by the Ninth Circuit’s long held view that 22 “judgment by default is a drastic step appropriate only in extreme circumstances;” and 23 7 24 25 26 27 28 Wisely, the defendant is not relying upon either her declaration or her lodged answer as bases for arguing that she has a meritorious defense. The defendant’s declaration is void of any facts pertaining to her purported meritorious defense; it pertains solely to the circumstances surrounding service. Similarly, the defendant’s lodged answer also does not allege sufficient facts that, if true, would constitute a defense.” See Mesle, 615 F.3d at 1094. In contrast to Parker v. McCarville Law Offices, PLC, 2010 WL 2197546, at *1 (D.Ariz. May 27, 2010), where the second Falk factor was met because the defendant’s answer “contain[ed] several affirmative defenses supported by specific facts[,]” defendant Barcklay’s answer lacks any specific or sufficient supporting facts. See id. (emphasis added) Rather, her answer consists of a mere general denial of liability and a recitation of a number of affirmative defenses, none of which include any supporting facts. - 12 - 1 that “a case should, whenever possible, be decided on the merits.” See Mesle, 615 F.3d 2 at 1091 (quoting Falk, 739 F.2d at 463) (other citations and footnote omitted). 3 II. Motions for Entry of Default Judgment 4 The granting of defendant Barcklay’s motion to set aside entry of the default (Doc. 5 23), renders moot the plaintiff’s motions for entry of default judgments (Docs. 15 and 6 18). On this basis, the court denies both of plaintiff’s motions. 7 III. Motion for Leave to File Untimely Answer 8 When an enlargement of time is sought, as here, after the expiration of a specified 9 deadline, the movant must show it “failed to act because of excusable neglect.” 10 Fed.R.Civ.P. 6(b)(1)(B). For the reasons previously discussed with respect to her motion 11 to set aside the entry of default, defendant Barcklay argues that the court should grant her 12 leave to file her proposed lodged answer, which is undoubtedly not timely. The plaintiff 13 counters that the defendant “knew she was supposed to give [the service packet] to ADC 14 legal services[,]” yet “she did not.” See Resp. (Doc. 30) at 1-2, ¶ 3. Hence, the plaintiff 15 contends that the court should deny the defendant’s motion. Additionally, the plaintiff is 16 opposing the defendant’s motion for the reasons set forth in his reply to the defendant’s 17 response to the OSC. 18 The defendant strongly disagrees with the plaintiff’s characterization of the facts. 19 Defendant Barcklay did not state that she knew that she was supposed to provide ADC’s 20 legal services section with the service packet. What she actually declared, as already 21 discussed, is that “[t]o the best of [the defendant’s] knowledge[,]” service packets were 22 “directed to Michael Bodek at Wexford for distribution to the appropriate Wexford 23 attorneys for defense or forwarded to ADC, if the staff member was employed by ADC at 24 the time of the incident underlying the lawsuit.” 25 defendant reiterates that the previously discussed reasons pertaining to her motion to set 26 aside the entry of default apply equally to this motion for an extension of time. Barcklay Decl’n (Doc. 23-1). The 27 “To determine whether a party's failure to meet a deadline constitutes ‘excusable 28 neglect,’ courts must apply a four-factor equitable test[ ]” based upon Pioneer Inv. Servs. - 13 - 1 Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). 2 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (citations 3 omitted). While Pioneer involved the Federal Rule of Bankruptcy Procedure 9006(b)(1), 4 the Ninth Circuit Court of Appeals has 5 determinations of what constitutes “excusable neglect” under other rules containing that 6 term, including Rule 6(b) of the Federal Rules of Civil Procedure. See, e.g., In re Veritas 7 Software Corp. Secs. Litig., 496 F.3d 962, 973 (9th Cir. 2007) (applying Pioneer test to 8 Rule 6(b) “excusable neglect” analysis). 9 requires, at a minimum, examination of: “(1) the danger of prejudice to the opposing 10 party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the 11 reason for the delay; and (4) whether the movant acted in good faith.” Trueman v. 12 Johnson, 2011 WL 6721327, at *6 (D.Ariz. Dec. 21, 2011) (citing Ahanchian, 624 F.3d 13 at 1261 (citations omitted)). “[W]hat sorts of neglect will be considered ‘excusable’ . . . 14 is at bottom an equitable one, taking account of all relevant circumstances surrounding 15 the party's omission.” Pioneer, 507 U.S. at 395. held that that four factor test applies to “Th[e] four factor [Pioneer] equitable test 16 Mindful that “a district court abuses its discretion if it does not consider each of 17 the four Pioneer factors separately[,]” PLU Investments, LLC v. Intraspect Group, Inc., 18 2011 WL 1376192, at *2 (W.D.Wash. April 12, 2011) (citing, inter alia, Ahanchian, 624 19 F.3d at 1261), this court will proceed in exactly that way. 20 keenly aware that while “balancing the Pioneer/Briones factors[,]” it “may not apply per 21 se rules.” See Ahanchian, 624 F.3d at 1261 (citation omitted). The court is also 22 cognizant that as the party seeking an extension of time, the defendant “bear[s] the 23 burden of establishing . . . excusable neglect[.]” See National Corporate Tax Credit 24 Funds III v. Potashinik, 2009 WL 4049396, at *3 (C.D.Cal. Nov. 19, 2009). In so doing, the court is 25 Much like prejudice in the “good cause” analysis, prejudice in the “excusable 26 neglect” context “requires greater harm than simply that relief would delay resolution of 27 the case.” See Lemoge, 587 F.3d at 1196 (citation omitted). Yet, as discussed earlier, 28 delay is the plaintiff’s sole basis for claiming prejudice. Just as delay was not persuasive - 14 - 1 in the good cause context, it is not persuasive in the excusable neglect context. 2 Furthermore, “[t]he Ninth Circuit has recognized that losing a previous ‘quick but 3 unmerited victory’ is not considered prejudicial.” Darling v. Green, 2012 WL 6189018, 4 at *2 (C.D.Cal. Dec. 12, 2012) (quoting Ahanchian, 624 F.3d at 1262). Thus, although 5 the court has set aside the Clerk’s entry of default, that is not considered prejudicial. 6 Next, the defendant’s delay in filing this motion and lodging her proposed answer 7 was not significant. Although she filed the foregoing two and a half months after entry of 8 the default, they were filed only slightly more than two weeks after she was ordered to 9 respond to the OSC. This delay is not long enough to justify denying the defendant’s 10 motion, especially given that this action is in its infancy. Thus, the impact of allowing 11 the defendant to file her answer late is relatively minimal. This is all the more so given 12 that the answer is drafted and already lodged. 13 The reason for the delay, defendant Barcklay’s reliance upon her employer’s 14 procedure for processing service packets -- a procedure which she had successfully 15 employed in the past -- likewise favors a finding of excusable neglect here, as well as a 16 finding that she was acting in good faith. Bolstering this finding of good faith is the fact 17 that the defendant responded to the OSC even before the ordered time and filed this 18 motion for leave to file an untimely answer, along with lodging her proposed answer. 19 Balancing the equities in light of the four explicit Pioneer factors, the court, in the 20 exercise of its discretion finds that defendant Barcklay has made the requisite showing of 21 excusable neglect under Fed.R.Civ.P. 6(b)(1)(B). This is all the more so given that 22 “[t]his rule, like all the Federal Rules of Civil Procedure, ‘[is] to be liberally construed to 23 effectuate the general purpose of seeing that cases are tried on the merits.’” Ahanchian, 24 624 F.3d at 1258-59 (quoting Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (other 25 citations omitted). Accordingly, the court grants the defendant’s motion for leave to file 26 an untimely answer (Doc. 24), and directs the Clerk of the Court to immediately file the 27 defendant’s lodged proposed answer (Doc. 25) . 28 ... - 15 - Conclusion 1 2 For all of the reasons discussed herein, the court hereby ORDERS that: 3 (1) the Plaintiff’s Motions for Default Judgment (Docs. 15 and 18) are DENIED; 4 (2) the Defendant’s Motion to Set Aside Default Under Fed.R.Civ.P. 55(c) (Doc. 5 6 7 8 9 10 23) is GRANTED; (3) the Defendant’s Motion for Leave to File an Untimely Answer (Doc. 24) is GRANTED; and (4) the Clerk of the Court is directed to immediately file the defendant’s lodged proposed answer (Doc. 25). DATED this 6th day of January, 2014. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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