United States of America v. Approximately $20,000.00 in U.S. Currency
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/13/2011 RECOMMENDING that 15 the clerk's entry of default as against Ms. McClellan, be set aside in the case bearing the number 2:11-cv-00320-FCD-KJN. The setting aside of Ms. McClellan's entry of default in this case shall not alter the various clerk's entries of default in the two related cases bearing the numbers 2:11-cv-091-FCD-KJN and 2:11-cv-099-FCD-KJN, respectively; Referred to Judge Frank C. Danrell, Jr.; Objections due within 14 days after being served with these F & R's. (Reader, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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Plaintiff,
No. 2:11-cv-0320 FCD KJN
v.
Approximately $20,000 in U.S.
CURRENCY,
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Defendant.
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FINDINGS AND RECOMMENDATIONS
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On May 3, 2011, the Clerk of the Court entered default against Audrey McClellan.
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(Dkt. No. 15.) On May 9, 2011, Ms. McClellan appeared in this action and filed a document
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entitled “Motion to Set Aside Clerk’s Entry of Default - Plaintiff Consenting.” (Dkt. No. 16.)1
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Ms. McClellan states that plaintiff has consented to set aside her default in this action (but not
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the two related cases bearing the numbers 2:11-cv-00091-FCD-KJN and 2:11-cv-00099-FCD-
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KJN, respectively) on the condition that Ms. McClellan submit a verified claim and answer with
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her request. (Dkt. No. 16 at 1-2.) A review of the court’s docket reflects that Ms. McClellan
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filed both a verified claim and an answer on the same day she filed the pending motion to set
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aside the clerk’s entry of default. (Dkt. Nos. 17, 18.)
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This matter proceeds before the undersigned pursuant to Eastern District Local Rule
302(c)(3).
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The Federal Rules provide that a “court may set aside an entry of default for good
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cause . . . .” Fed. R. Civ. Pro. 55(c). To determine “good cause”, a court must “‘consider[ ] three
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factors: (1) whether [the party seeking to set aside the default] engaged in culpable conduct that
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led to the default; (2) whether [it] had [no] meritorious defense; or (3) whether reopening the
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default judgment would prejudice’ the other party. [Citation.] This standard, which is the same
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as is used to determine whether a default judgment should be set aside under Rule 60(b), is
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disjunctive, such that a finding that any one of these factors is true is sufficient reason for the
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district court to refuse to set aside the default.” U.S. v. Signed Personal Check No. 730 of
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Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (quoting Franchise Holding II v.
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Huntington Rests. Group, Inc., 375 F.3d 922, 925-26 (9th Cir. 2004)). Crucially, however, “a
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case should, whenever possible, be decided on the merits.” Id.
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Here, Ms. McClellan’s motion was not set for a hearing date, let alone set to be
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heard after the 28 day’s notice typically required for civil law and motion matters. E.D. Local
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Rule 230(b). Ms. McClellan’s motion also did not include a signed stipulation confirming
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plaintiff’s consent to set aside the default. E.D. Local Rule 143(a)(1). Nevertheless, it appears
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plaintiff has agreed to the setting aside of the clerk’s entry default as against Ms. McClellan. If
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Ms. McClellan has accurately represented plaintiff’s consent to setting aside the clerk’s entry of
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default against her, the undersigned cannot see a reason to recommend denial of the pending
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motion. To date, plaintiff has not filed an opposition to Ms. McClellan’s motion to set aside the
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clerk’s entry of default. Accordingly, the undersigned recommends that the clerk’s entry of
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default as against Ms. McClellan be set aside. If plaintiff takes issue with Ms. McClellan’s
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characterization of plaintiff’s agreement to set aside the clerk’s entry of default against her,
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plaintiff shall have the opportunity to object to these Findings and Recommendations as
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described below.
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
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The clerk’s entry of default as against Ms. McClellan dated May 3, 2011 (Dkt.
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No. 15), be set aside in the case bearing the number 2:11-cv-00320-FCD-KJN. The setting aside
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of Ms. McClellan’s entry of default in this case shall not alter the various clerk’s entries of
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default in the two related cases bearing the numbers 2:11-cv-00091-FCD-KJN and 2:11-cv-
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00099-FCD-KJN, respectively.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b).
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Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Any response to the objections shall be filed with the court and served on
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all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d).
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Failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d
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1153, 1156-57 (9th Cir. 1991).
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IT IS SO RECOMMENDED.
DATED: May 13, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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