Fields v. Roberts

Filing 98

ORDER GRANTING Defendant Neubarth's Motion to Set Aside Entry of Default 95 ; ORDER SETTING Aside Clerk's Entry of Default Against Defendant Neubarth 77 ; ORDER DENYING AS MOOT Plaintiff's Motions for Default Judgment Against Defendant Neubarth 90 , 93 , signed by Magistrate Judge Gary S. Austin on 6/6/13: A scheduling order opening discovery in this action shall be issued forthwith. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN E. FIELDS,

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Plaintiff,

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1:06-cv-00407-AWI-GSA-PC
ORDER GRANTING DEFENDANT
NEUBARTH’S MOTION TO SET ASIDE
ENTRY OF DEFAULT
(Doc. 95.)

vs.
P. ROBERTS, et al.,

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ORDER SETTING ASIDE CLERK’S
ENTRY OF DEFAULT AGAINST
DEFENDANT NEUBARTH
(Doc. 77.)

Defendants.

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ORDER DENYING AS MOOT
PLAINTIFF’S MOTIONS FOR DEFAULT
JUDGMENT AGAINST DEFENDANT
NEUBARTH
(Docs. 90, 93.)

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I.

BACKGROUND

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Kevin Fields ("Plaintiff") is a state prisoner proceeding pro se with this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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April 10, 2006. (Doc. 1.) This action now proceeds with the Fifth Amended Complaint filed

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by Plaintiff on June 24, 2010, against defendant Jeff Neubarth (“Defendant”) for deliberate

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indifference to Plaintiff’s medical needs.1 (Doc. 51.)

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The Court dismissed Defendant P. Roberts from this action on March 12, 2012, based on Plaintiff=s
failure to effect service. (Doc. 75.) Therefore, Jeff Neubarth is the only Defendant remaining in this action.
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On June 5, 2012, following Plaintiff’s request, the Clerk of Court entered default

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against defendant Neubarth for his failure to respond to the complaint. (Doc. 77.) On June 13,

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2012, Plaintiff filed a motion for default judgment against defendant Neubarth, pursuant to

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Rule 55(b). (Doc. 79.) On August 23, 2012, the Court issued an order requiring Plaintiff to

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supply further information in support of the motion. (Doc. 80.)

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On February 8, 2013 and February 13, 2013, Plaintiff filed amended motions for default

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judgment against defendant Neubarth. (Docs, 90, 93.) On May 16, 2013, defendant Neubarth

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filed an answer to the complaint, a motion to set aside the entry of default, and an opposition to

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Plaintiff’s motions for default judgment. (Docs. 95, 96.) On May 30, 2013, Plaintiff filed a

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statement of non-opposition to Defendant’s motion to set aside the entry of default, and to

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Defendant’s opposition to the motion for default judgment. (Doc. 97.)
Defendant Neubarth’s motion to set aside the entry of default, and Plaintiff’s motion for

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default judgment against defendant Neubarth are now before the Court.

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II.

DEFENDANT’S MOTION TO SET ASIDE ENTRY OF DEFAULT

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1.

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Entry of default is appropriate as to any party against whom a judgment for affirmative

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relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of

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Civil Procedure and where that fact is made to appear by affidavit or otherwise. See Fed. R.

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Civ. P. 55(a). Rule 12 of the Federal Rules of Civil Procedure provides, A[A] defendant must

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serve an answer within 21 days after being served with the summons and complaint; or if it has

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timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent.@

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Fed. R. Civ. P. 12(a)(1)(A).

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Legal Standard

Once default has been entered against a defendant, the court may, A[f]or good cause

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shown . . . set aside an entry of default. . . .@ Fed. R. Civ. P. 55(c). AThe court=s discretion is

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especially broad where, as here, it is entry of default that is being set aside, rather than default

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judgment.@ O=Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (quoting Mendoza

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v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986)); see also Brady v. United States,

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211 F.3d 499, 504 (9th Cir. 2000). Default is generally disfavored. In re Hammer, 940 F.2d
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524, 525 (9th Cir. 1991); Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir.

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2009). Therefore, A>[w]here timely relief is sought from a default . . . and the movant has a

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meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the

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[default] so that cases may be decided on their merits.=@ Mendoza, 783 F.2d at 945-46 (quoting

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Schwab v. Bullock=s, Inc., 508 F.2d 353, 355 (9th Cir. 1974) (internal quotations and citation

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omitted)). In determining whether to set aside default, relevant factors including the culpability

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of defendant, the existence of a meritorious defense, and any prejudice to plaintiff should be

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considered. American Ass=n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th

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Cir. 2000).

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2.

Defendant’s Motion to Set Aside Entry of Default

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Defendant Neubarth argues that the entry of default against him should be set aside

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because he did not receive timely notification of Plaintiff’s complaint, through no fault of his

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own, and therefore was unable to timely respond to Plaintiff’s complaint. According to the

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Court’s docket, Defendant’s summons was returned executed on October 3, 2011, after the U.S.

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Marshal personally served Mr. Villa at the SATF Litigation Coordinator’s office. (Doc. 65.)

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However, Defendant asserts that the SATF Litigation Coordinator’s office inadvertently failed

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to process the lawsuit or notify Dr. Neubarth of the lawsuit at that time. (Decl. of F. Villa, Doc.

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95-2 ¶¶13, 15.) Defendant did not learn of the impending litigation until May 2, 2013, and he

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immediately requested representation by the Office of the Attorney General. (Decl. of J.

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Neubarth, Doc. 95-3 ¶13.)

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Plaintiff has indicated that he “does not wish to oppose [] Defendant Jeff Neubarth’s
motion to set aside entry of default.” (Doc. 97.)

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Discussion

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Defendant’s motion to set aside the entry of default shall be granted. Defendant has

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submitted sufficient evidence that he was not timely notified of Plaintiff’s complaint, through

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no fault of his own, and when he finally did receive notice, he immediately acted to request

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counsel to defend himself. (Villa Decl. ¶¶13, 15; Neubarth Decl. ¶13.) Moreover, Defendant

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filed an Answer to the complaint on May 17, 2013, defending against the complaint. (Doc. 96.)
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Based on this record, there is no evidence that Defendant intentionally failed to plead or

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otherwise defend against the complaint, and Plaintiff is not entitled to entry of judgment.

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Franchise Holding II, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922, 927-28 (9th Cir.

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2004) (if party appeared, clerk=s entry of default void ab initio). Moreover, Plaintiff has

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indicated that he does not oppose setting aside the entry of default against Defendant. (Doc.

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97.) Therefore, Defendant’s motion to set aside the entry of default against him shall be

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granted.

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B.

PLAINTIFF’S MOTIONS FOR DEFAULT JUDGMENT
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Legal Standards

Even if entry of default has been made by the court clerk, granting a default judgment is

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not automatic. PepsiCo, Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D.Cal.1999); see

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GMAC Commercial Mortg. Corp. v. Maitland Hotel Assoc., 218 F.Supp.2d 1355, 1359

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(M.D.Fla.2002) (finding that Amere entry of default by clerk does not in itself warrant entry of

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default judgment@). Instead, A[t]he [Court's] decision whether to enter a default judgment is a

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discretionary one.@ Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980); see Duling v.

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Markun, 231 F.2d 833, 836 (7th Cir.1956). A[T]he general rule disfavors default judgments.

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Cases should be decided upon their merits whenever reasonably possible.@ Eitel v. McCool,

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782 F.2d 1470, 1472 (9th Cir.1986).

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When choosing to grant or deny entry of a default judgment, the Court considers several

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factors: (1) the possibility of prejudice to the plaintiff; (2) the substantive merits of the

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plaintiff's claim; (3) the sufficiency of the complaint; (4) the amount of money at stake; (5) the

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possibility of prejudice to plaintiff if relief is denied; (6) whether default was the result of

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excusable neglect; and (7) the strong policy of the Federal Rules that favors decisions on the

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merits. Id., 782 F.2d at 1472.

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2.

Plaintiff’s Motions for Default Judgment

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In his motions, filed on February 8, 2013 and February 13, 2013, Plaintiff requested

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default judgment against defendant Neubarth based on the Clerk’s entry of default against

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defendant Neubarth for failure to defend against the complaint.
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In opposition, Defendant argued that all of the Eitel factors favor Defendant, and that

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the circumstances of this case satisfy the threshold “good cause” requirement justifying relief

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from default judgment in Lynch v. Pearce, 886 F.2d 334 (9th Cir. 1989) (holding that district

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court did not abuse its discretion in granting the defendant relief from judgment under Rule

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60(b) where the defendant was aware of the action against him, but did not answer the

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complaint because he had mistakenly assumed that he was being defended by counsel for his

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employer).

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Discussion

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Plaintiff’s motions for default judgment against Defendant are moot because by this

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order, the Clerk’s entry of default against Defendant shall be set aside. Moreover, Plaintiff has

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filed a notice of non-opposition to Defendant’s opposition to the motions for default judgment.

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Therefore, Plaintiff’s motions for default judgment against defendant Neubarth, filed on

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February 8, 2013 and February 13, 2013, shall be denied as moot.

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III.

CONCLUSION

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Based on the foregoing and good cause appearing, IT IS HEREBY ORDERED that:

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1.

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Defendant Neubarth’s motion to set aside the entry of default against him, filed
on May 16, 2013, is GRANTED;

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2.

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The Clerk’s entry of default against Defendant Neubarth, filed on June 5, 2012,
is SET ASIDE;

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3.

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Plaintiff’s motions for default judgment against Defendant Neubarth, filed on
February 8, 2013 and February 13, 2013, are DENIED as moot; and

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4.

A scheduling order opening discovery in this action shall be issued forthwith.

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IT IS SO ORDERED.
Dated:

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June 6, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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