Landau v. Voss et al

Filing 89

ORDER GRANTING Defendant Allen's Motion to Set Aside Entry of Default 86 , signed by Magistrate Judge Dennis L. Beck on 12/13/10: Defendant Allen is granted twenty (20) days from the date of service of this order in which to file her answer to Plaintiff's complaint. (Hellings, J)

(PC) Landau v. Voss et al

Doc. 89

1 2 3 4 5 6 EASTERN DISTRICT OF CALIFORNIA 7 8 SID LANDAU, 9 10 v. Plaintiff, CASE NO. 1:07-CV-00815-AWI-DLB PC ORDER GRANTING DEFENDANT ALLEN'S MOTION TO SET ASIDE ENTRY OF DEFAULT (DOC. 86) Defendants. /

UNITED STATES DISTRICT COURT

11 W. T. VOSS, et al., 12 13 14 15

Plaintiff Sid Landau ("Plaintiff") is a civil detainee proceeding pro se and in forma

16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On October 4, 2010, the Clerk's 17 Office was directed to enter default against defendant Wendy Allen. Docs. 83, 84. On October 18 26, 2010 Defendant Allen moved to set aside the entry of default. Doc. 86. No opposition was 19 filed by Plaintiff. The matter is submitted pursuant to Local Rule 230(l). 20 Once default has been entered against a defendant, the court may, "[f]or good cause

21 shown . . . set aside an entry of default . . ." Fed. R. Civ. P. 55(c). "The court's discretion is 22 especially broad where, as here, it is entry of default that is being set aside, rather than default 23 judgment." O'Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (quoting Mendoza v. 24 Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986)); see also Brady v. United States, 211 25 F.3d 499, 504 (9th Cir. 2000). Default is generally disfavored. In re Hammer, 940 F.2d 524, 26 525 (9th Cir. 1991). Therefore, "`[w]here timely relief is sought from a default . . . and the 27 movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set 28 aside the [default] so that cases may be decided on their merits.'" Mendoza, 783 F.2d at 945-46 1
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1 (quoting Schwab v. Bullock's, Inc., 508 F.2d 353, 355 (9th Cir. 1974) (internal quotations and 2 citation omitted)); see United States v. Mesle, 615 F.3d 1085, 1089 (9th Cir. 2010) ("Judgment 3 by default is a drastic step appropriate only in extreme circumstances; a case should, whenever 4 possible, be decided on the merits.") (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)). 5 In determining whether to set aside default, relevant factors including the culpability of 6 defendant, the existence of a meritorious defense, and any prejudice to plaintiff should be 7 considered. TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001); American 8 Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000). 9 On March 24, 2009, Defendant Allen returned a waiver of service of summons. Doc. 28.

10 Defendant then failed to file any response until her present motion. Defendant Allen contends 11 that she was ignorant of the requirements for filing an answer, and did not intentionally fail to 12 answer. Def.'s Mot. 3:12-24. Defendant Allen contends that she has a meritorious defense as 13 her actions were reasonable and did not violate any established rights. Id. at 4:27-5:3. Defendant 14 Allen also contends that the prejudice to Plaintiff will be minimal, as Plaintiff has had his similar 15 claims dismissed as against five other Defendants. Id. at 5:6-10. 16 Having considered Defendant Allen's arguments, the Court finds good cause to set aside

17 the entry of default pursuant to Rule 55(c). Accordingly, based on the foregoing, it is HEREBY 18 ORDERED that Defendant Allen's motion to set aside entry of default is GRANTED. 19 Defendant Allen is granted twenty (20) days from the date of service of this order in which to file 20 her answer to Plaintiff's complaint. 21 22 23 24 25 26 27 28 2 IT IS SO ORDERED. Dated: 3b142a

December 13, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE