Barry Rosen v. Michael Medlin et al

Filing 54

ORDER GRANTING MOTION TO SET ASIDE ENTRY OF DEFAULT 35 . Defendant Michael Medlin shall respond to the First Amended Complaint within fourteen days of this Order. by Judge Otis D. Wright, II (lc)

O

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14

Case No. 2:15-cv-05789-ODW-JC

BARRY ROSEN,
v.

ORDER GRANTING MOTION TO
SET ASIDE ENTRY OF DEFAULT
[35]

Plaintiff,

MICHAEL “MIKE” MEDLIN dba

15

AFFORDABLE AUTOGRAPHS;

16

AFFORDABLE AUTOGRAPHS

17

HOLLYWOOD; HOLLYWOOD SHOW,

18

LLC; AND DOES 1-10,

19

Defendants.

20
21
22
23
24

Defendant Michael Medlin moves to set aside a default entered against him
under Federal Rule of Civil Procedure 55(c). (ECF No. 35.) Plaintiff Barry Rosen
argues the motion should be denied because (1) Defendant failed to meet and confer

25

prior to the filing of his motion; (2) Defendant was under the jurisdiction of the Court

26

having answered the Original Complaint; and (3) Defendant’s continuous violations

27
28
1

1

of Federal Rules of Civil Procedure is a burden on the Court. (ECF No. 38.) For the

2

following reasons, the Court GRANTS Defendant’s motion.1
I.

3

FACUTAL BACKGROUND

4

This action concerns copyright issues within the autograph dealing industry.

5

Defendant obtains autographs of celebrities on photographs he prints off the internet

6

and subsequently sells them for profit. (First Am. Compl. ¶ 5.)

7

On July 20, 2015, Plaintiff filed his original Complaint. (ECF No. 1.) The

8

Summons and Complaint were personally served on Defendant at 5400 W. Century

9

Blvd., Los Angeles, California on August 3, 2015.

10
11
12
13

(ECF No. 8.)

Defendant,

appearing pro se, filed his Answer to the Original Complaint on September 2, 2015.
(ECF No. 23.) On September 10, 2015, Plaintiff filed his First Amended Complaint
(“FAC”). (ECF No. 25.) The FAC was served on Defendant by first class U.S. mail
at 5936 Carlton Way, No. 11, Hollywood, California, which is the address listed on

14
15
16
17
18

Defendant’s previously-filed Answer. (ECF Nos. 23, 26.) Defendant failed to answer
the FAC, and on October 8, 2015, the Clerk entered a default against the Defendant.
(ECF No. 33.) Defendant now moves to set aside the default, claiming he never
received the FAC. (ECF No. 35.)
II.

19

LEGAL STANDARD

20

Federal Rule of Civil Procedure 55(c) authorizes a court to “set aside the entry

21

of default” for “good cause shown.” Fed. R. Civ. P. 55(c). District courts look at

22

three factors when deciding whether to set aside a default: “(1) whether the plaintiff

23

will be prejudiced, (2) whether the defendant has a meritorious defense, and (3)

24

whether culpable conduct of the defendant led to the default.” Brandt v. Am. Bankers

25

Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011) (quoting Falk v. Allen, 739 F.2d

26

461, 463 (9th Cir. 1984)). “Where timely relief is sought from a default . . . doubt, if

27
28

1

After carefully considered the papers filed in support of and in opposition to the Motion, the Court
deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.
2

1

any, should be resolved in favor of the motion to set aside the [default] so that cases

2

may be decided on their merits.” Mendoza v. Wright Vineyards Mgmt., 783 F.2d 941,

3

945–46 (9th Cir. 1986) (internal quotation marks omitted).

4

III.

DISCUSSION

5

The first factor from Brandt requires the Court to consider whether Plaintiff

6

will be prejudiced if the entry of default is set aside. See Brandt, 653 F.3d at 1111.

7

“To be prejudicial, the setting aside of a judgment must result in greater harm than

8

simply delaying resolution of the case.” TCI Group Life Ins. Plan v. Knoebber, 244

9

F.3d 691, 700 (9th Cir. 2001), overruled on other grounds by Egelhoff v. Egelhoff ex

10
11
12
13

rel. Breiner, 532 U.S. 141 (2001).

A two-month delay in this matter is not

inconsequential, and the Court is sensitive to Plaintiff’s interest in a speedy resolution.
However, there is no indication that Plaintiff will suffer any harm greater than this
delay, and it appears that Defendant is now prepared to diligently litigate this matter.

14
15
16
17

This factor weighs in favor of Defendant.
The second factor requires the Court to consider whether Defendant has a
meritorious defense to this action. See Brandt, 653 F.3d at 1111. A defendant

18

seeking to set aside an entry of default must present specific facts that would

19

constitute a defense. See TCI Group Life, 244 F.3d at 700. Defendant’s only possible

20

“meritorious defense” is that he printed the images from the internet, which he argues

21

is a public domain, and that the images lacked any kind of watermark. (ECF No. 36.)

22

Notwithstanding the lack of a declaration, Defendant fails to allege any “specific”

23

facts to suggest this is a meritorious fair use defense. See id.

24

However, Defendant is appearing pro se. When a party appears pro se, the

25

Court construes the pleadings liberally and affords them the benefit of any doubt. See

26

Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a

27

duty to construe pro se pleadings liberally.”).

28

This allowance does not mean,

however, that a pro se defendant is “excused from knowing the most basic pleading
3

1

requirements.” Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104,

2

1107 (9th Cir. 2000). But even construing the pleadings liberally, this factor still

3

weighs slightly in favor of Plaintiff due to the relative weakness of Defendant’s

4

defense.

5

The final factor requires the Court to determine whether Defendant’s culpability

6

led to the entry of default. See Brandt, 653 F.3d at 1111. “[A] defendant’s conduct is

7

culpable if he has received actual or constructive notice of the filing of the action and

8

intentionally failed to answer.” TCI Group Life, 244 F.3d at 697. In this context, the

9

term “intentionally” does not just mean making a conscious choice not to answer;

10

rather, the movant must have acted with bad faith, such as an “intention to take

11
12
13

advantage of the opposing party, interfere with judicial decision making, or otherwise
manipulate the legal process.” Id.
Defendant claims to not have received Plaintiff’s FAC.

(ECF No. 35.)

14
15
16
17

However, Defendant does not assert that the proof of service of the FAC was
somehow defective or listed an incorrect address for service of process. To the
contrary, the FAC was served on the exact address listed on Defendant’s Answer to

18

the Original Complaint: 5936 Carlton Way, No. 11, Hollywood, California. (ECF

19

Nos. 23, 26.) Whether Defendant received the FAC or not, he was already on notice

20

that that the action had been filed against him, and a responsible party would have

21

done their due diligence from that point on to discover when a responsive pleading

22

was required.

23

However, nothing in Defendant’s conduct suggests the bad faith necessary to

24

find that he intentionally failed to answer the FAC.

25

Defendant intended to take advantage of the opposing party or manipulate the legal

26

process. Instead, the facts demonstrate that Defendant either never received the FAC

27

or that he was ignorant of the law and did not understand his obligation to respond to

28

There is no evidence that

an amended complaint. Taking into account of all relevant circumstances surrounding
4

1

the party’s omission, the Court finds that Defendant’s conduct was not culpable. As

2

such, this factor weighs in favor of Defendant.

3

In light of the strong preference for resolution of issues on the merits, the

4

diligent response of Defendant in moving promptly to set aside default, the absence of

5

prejudice to Plaintiff, and the lack of bad faith on the part of Defendant, the Court is

6

inclined to grant Defendant’s motion to set aside entry of default.

7

IV.

CONCLUSION

8

In light of the foregoing, the Court GRANTS Defendant’s motion to set aside

9

entry of default. Defendant Michael Medlin shall respond to the First Amended

10

Complaint within fourteen days of this Order.

11
12
13
14

IT IS SO ORDERED.
December 22, 2015

15
16
17

____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

18
19
20
21
22
23
24
25
26
27
28

5