Turner v. Byer

Filing 37

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/16/2019 DENYING 20 Motion for Default Hearing; GRANTING 27 Motion to Set Aside Entry of Default; and ORDERING Defendant to formally file and serve motion to dismiss or other response to complaint within 14 days of the date of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAFONZO R. TURNER,

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No. 2:17-cv-1869-EFB

Plaintiff,

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v.

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S. BYER,

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ORDER

Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On January 17, 2018, the court found service appropriate for defendant Byer.

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ECF No. 8. Plaintiff submitted the necessary documents for service on February 5, 2018, and

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Byer returned an executed waiver of service on March 6, 2018. ECF Nos. 11, 14. Byer thereafter

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failed to respond to the complaint, and the Clerk entered his default on June 18, 2018. ECF No.

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18. Plaintiff then sought a default hearing. ECF No. 20.

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The Court ordered the Clerk to serve the Supervising Deputy Attorney General with the

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complaint, screening order, the entry of default, and plaintiff’s motion for a hearing. ECF No. 25.

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The court provided the deputy attorney general with 14 days to respond to the motion. Id.

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Defendant, represented by the attorney general, timely filed the instant motion to set aside entry

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of default in response to the court’s order. ECF No. 27. Plaintiff has filed no opposition. The

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motion is granted for the reasons that follow, and plaintiff’s “motion for default hearing” will

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therefore be denied.
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I.

Standard for Setting Aside Entry of Default

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“The court may set aside an entry of default for good cause[.]” Fed. R. Civ. P. 55(c). To

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determine if the moving party has shown good cause under Rule 55(c), the court considers three

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factors: (1) whether the party seeking to set aside entry of default engaged in culpable conduct

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that lead to the default; (2) whether the moving party lacks a meritorious defense; and (3) whether

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setting aside entry of default would prejudice the other side. United States v. Mesle, 615 F.3d

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1085, 1091 (9th Cir. 2010). If the court finds any of the three factors to be true, that is sufficient

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to allow the entry of default to stand. Id. However, default judgment is disfavored and only

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appropriate in extreme circumstances. Id.

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II.

Analysis
a. Defendant Did Not Act Culpably

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Defendant has provided the court with declarations establishing that he did not act

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culpably but that, instead, the entry of default was caused by a lapse on the part of his employer’s

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litigation coordinator, who told defendant that he would request representation for him by the

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Office of the Attorney General but then mistakenly failed to do so. ECF Nos. 27-1 (Byers Decl.)

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& 27-2 (Alanis Decl.).

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b. Defendant Does Not Lack a Viable Defense
Defendant has also met his burden of showing that he does not lack a meritorious defense.

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To show this, defendant needed to merely allege sufficient facts that, if true, would constitute a

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defense. Mesle, 615 F.3d at 1094. Defendant alleges sufficient facts to support four potential

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defenses. First, he argues that plaintiff’s claim is Heck-barred because plaintiff was convicted in

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state court of battery on defendant and success on his excessive force claim would necessarily

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undermine that conviction. ECF No. 27 at 6. Second, he argues that certain factual issues at play

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in this case have been decided by the jury in the state case and those findings should be given

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preclusive effect. Id. at 7. Third, he argues that a video of the altercation between plaintiff and

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defendant shows that he did not act with excessive force. Id. Lastly, he argues that he acted as a

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reasonable officer would under the circumstances and thus should be afforded qualified

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immunity. Id.
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c. Plaintiff Will Not Be Prejudiced

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Defendant argues that plaintiff will not be prejudiced by setting aside the entry of default,

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and there is no indication otherwise. Being forced to litigate the case or deal with the rather

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minimal delay occasioned by the litigation coordinator’s mistake in this case do not amount to

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prejudice, and plaintiff does not so claim. See FOC Fin. Ltd. P’ship v. Nat’l City Commercial

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Capital Corp., 612 F. Supp. 2d 1080, 1085 (D. Ariz. 2009).

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III.

Order
Defendant has met his burden of showing good cause for setting aside the clerk’s entry of

default. Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for default hearing (ECF No. 20) is DENIED;

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2. Defendant’s motion to set aside entry of default (ECF No. 27) is GRANTED; and

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3. Within 14 days of the date of this order, defendant shall formally file his motion to

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dismiss or other response to the complaint in this action and serve the same on

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plaintiff.

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DATED: July 16, 2019.

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