Juan Moreno v. Nabil Kheir et al

Filing 35

ORDER GRANTING DEFENDANTS MOTION TO SET ASIDE ENTRY OF DEFAULT 27 AND DENYING AS MOOT PLAINTIFFS APPLICATION FOR DEFAULT JUDGMENT 33 . Kheir shall file an answer or, in the alternative, a motion to dismiss, no later than 14 days from the date of this Order by Judge Otis D. Wright, II . (lc). Modified on 7/11/2014 (lc).

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United States District Court
Central District of California

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JUAN MORENO,
Plaintiff,

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Case No. 2:14-cv-01000-ODW(RZx)

v.

ORDER GRANTING

NABIL KHEIR and DOES 1–10,
Defendants.

DEFENDANT’S MOTION TO SET
ASIDE ENTRY OF DEFAULT [27]

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AND DENYING AS MOOT

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PLAINTIFF’S APPLICATION FOR

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DEFAULT JUDGMENT [33]

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On June 20, 2014, Defendant Nabil Kheir filed a Motion to Set Aside Entry of

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Default. (ECF No. 27.) The Clerk of Court entered default against Kheir on June 11,

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2014. (ECF No. 23.) Kheir is without counsel and is attempting to represent himself

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in this action. He states that he has been in communication with counsel for Plaintiff

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Juan Moreno, and that his failure to answer or otherwise defend this action was due to

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a misunderstanding of civil procedure.

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discussions with Moreno’s counsel constituted a response to the Complaint. Kheir

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now asks that entry of default be set aside so that he may properly defend the case.

Specifically, Kheir believed that his

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Federal Rule of Civil Procedure 55(c) gives a district court the discretion to set

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aside entry of default upon a showing of good cause. In assessing whether good cause

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exists to set aside default, district courts look at three factors: “(1) whether the

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plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and

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(3) whether culpable conduct of the defendant led to the default.” Brandt v. Am.

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Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011) (quoting Falk v. Allen,

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739 F.2d 461, 463 (9th Cir. 1984)). Courts must also keep in mind that default

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judgments are “appropriate only in extreme circumstances” and cases should be

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decided on the merits whenever possible. Falk, 739 F.2d at 463.

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The Court finds that good cause exists for setting aside entry of default in this

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case. Moreno is unlikely to be prejudiced, because this case was filed only a few

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months ago. Moreover, Moreno has not filed an opposition to the Motion. Kheir

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indicates that he has a valid defense to Moreno’s claims. This action arises under the

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Americans with Disabilities Act. Kheir indicates that his business complies with

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accessibility requirements. Furthermore, while Kheir is culpable for the default, the

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Court finds Kheir’s actions to be the result of excusable neglect. But Kheir is warned

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that his decision to represent himself in this action will not excuse him from

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compliance with the Federal Rules of Civil Procedure or the Central District of

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California’s Local Rules in the future.

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For these reasons, the Court GRANTS Defendant’s Motion to Set Aside Entry

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of Default. (ECF No. 27.) Kheir shall file an answer or, in the alternative, a motion to

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dismiss, no later than 14 days from the date of this Order. Plaintiff Juan Moreno has

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also filed an Application for Default Judgment. (ECF No. 33.) Since the Court is

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setting aside the entry of default, the Court DENIES the Application for Default

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Judgment AS MOOT.

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Finally, the Court advises Kheir that if he has any doubt concerning law or

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procedure, or has difficulty filing papers on time, he should consult an attorney. And

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if he cannot afford an attorney, there is a Federal Pro Se Clinic located in the United

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States Courthouse at 312 N. Spring Street, Room G-19, Main Street Floor, Los

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Angeles, California 90012.

The clinic is open for appointments on Mondays,

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Wednesdays, and Fridays starting at 9:30 a.m. The Federal Pro Se Clinic offers free,

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on-site information and guidance to individuals who are representing themselves in

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federal civil actions. Kheir is encouraged to visit the clinic for advice concerning his

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case.

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IT IS SO ORDERED.

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July 11, 2014

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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