Turner v. Ahern et al

Filing 17

ORDER by Judge Kandis A. Westmore granting 12 Motion to Set Aside Default (kawlc2S, COURT STAFF) (Filed on 3/21/2013)

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United States District Court
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Northern District of California

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STEPHEN B. TURNER,
Plaintiff,

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v.

Case No.: 12-cv-6174 KAW
ORDER GRANTING DEFENDANT'S
MOTION TO SET ASIDE THE CLERK'S
ENTRY OF DEFAULT

GREGORY J. AHERN, et al.,
Defendants.

Northern District of California

United States District Court

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On February 22, 2013, Defendants filed a motion to set aside the Clerk's entry of default
in this case, which is currently set for hearing on April 4, 2013.

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Pursuant to Civil Local Rule 7-3, Plaintiff's opposition was due on March 8, 2013.

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Plaintiff has not filed an opposition, which constitutes grounds for granting Defendant's motion in

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and of itself. See Judge Westmore's Standing Order at 5 ("The failure of the opposing party to file

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a memorandum of points and authorities in opposition to any motion shall constitute consent to

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the granting of the motion").

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Moreover, Defendants' motion to set aside the default is meritorious. A court may set

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aside an entry of default for good cause. Fed. R. Civ. P. 55(c). To determine whether good cause

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exists, the court must consider three factors: 1) whether the moving party engaged in culpable

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conduct that led to the default; 2) whether there was a meritorious defense; and 3) whether the

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other party would be prejudiced. United States v. Signed Pers. Check No. 730 of Yubran S.

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Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010). There is a strong policy in favor of deciding cases

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on the merits, and a court's refusal to relieve a party of a default is considered a harsh sanction

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and appropriate only in extreme circumstances. Id.

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Defendants' motion and Defendants' counsel's affidavit explains that Defendants' counsel
was unexpectedly taken ill on February 15, 2013, and was unable to work until February 21,

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2013, the day after the responsive pleading was due. Default was entered by the Clerk on

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February 21, 2013. Defendants' counsel filed her motion to set aside the entry of default the very

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next day. Given these facts, Defendants' conduct was not culpable. See TCI Group Life Ins. Plan

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v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001) (in order for conduct to be considered culpable,

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the defendant must have acted in bad faith).

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Defendants argue that they have meritorious defenses to Plaintiff's claims, including that

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the complaint fails to state any claims upon which relief may be granted. Defendants have filed a

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proposed motion to dismiss, which sets out this argument in more detail. All that is necessary to

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satisfy the “meritorious defense” requirement is to “allege sufficient facts that, if true, would

Northern District of California

constitute a defense.” Id. at 697. Defendants' allegation that Plaintiff's complaint fails to state a

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United States District Court

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claim upon which relief can be granted meets this standard.

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Finally, there is no indication that Plaintiff will be prejudiced if the entry of default is set

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aside. See id. at 701 (to be considered prejudicial, there must be "tangible harm such as loss of

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evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion").

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Here, Defendants filed their motion to set aside the entry of default one day after it was entered

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and two days after their response to the complaint was due. As such, there has been no impact of

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significance that would be prejudicial to Plaintiff's ability to prosecute his case.

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For the reasons explained above, it is hereby ORDERED that:
1. Defendants' motion to set aside the clerk's entry of default is GRANTED, and the April 4,
2013 hearing date is VACATED; and
2. Within seven days of the date of this order, Defendants shall file their proposed motion to
dismiss.

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Dated: March 21, 2013

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___________________________
KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE

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