ADT Services AG et al v. Hilwey

Filing 25

ORDER (1) granting 21 Defendant Michael Hilway's Motion to Set Aside Default and (2) denying 16 Plaintiff ADT's Motion for Default Judgment without prejudice: Defendant Hilway is directed to answer or otherwise respond to the complaint on or before 12/15/10. The Court's 11/8/10 preliminary injunction order remains in effect against Defendant Hilway. Signed by Judge Marilyn L. Huff on 12/13/10. (lmt)

-WVG ADT Services AG et al v. Hilwey

Doc. 25

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-110cv1812

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
ADT SERVICES AG, a Swiss corporation and ADT SECURITY SERVICES, INC., a Delaware corporation, vs. Plaintiffs, CASE NO. 10-CV-1812-H (WVG) ORDER (1) GRANTING DEFENDANT MICHAEL HILWAY'S MOTION TO SET ASIDE DEFAULT (2) DENYING PLAINTIFF ADT'S MOTION FOR DEFAULT JUDGMENT Defendant.

Michael Hilwey,

On August 31, 2010, Plaintiffs ADT Services AG and ADT Security Services, Inc. ("ADT") filed a complaint against Michael Hilway (erroneously sued as Michael Hilwey) ("Hilway"). (Doc. No. 1.) On October 8, 2010, ADT filed a request for entry of Clerk's default against Defendant Hilway because Hilway had failed to plead or otherwise respond to the complaint within the time prescribed by the Federal Rules of Civil Procedure. (Doc. No. 14.) On October 12, 2010, the Clerk entered default against Defendant. (Doc. No. 15.) On November 5, 2010, Plaintiff ADT filed a motion for default judgment and permanent injunction. (Doc. No. 16.) A motion hearing was set for December 13, 2010. On November 8, 2010, the Court entered a preliminary injunction against Defendant Hilway. (Doc. No. 20.)

Dockets.Justia.com

1 On December 7, 2010, Defendant Hilway filed a motion to set aside default. (Doc. No. 21.) 2 On December 8, 2010, the Court ordered that the motion to set aside default be treated as 3 Defendant's opposition to the motion for default judgment and set a hearing on both the 4 motion to set aside default and motion for default judgment for December 13, 2010. (Doc. No. 5 22.) On December 10, 2010, Plaintiff ADT filed its response in opposition to the motion to 6 set aside default. (Doc. No. 23.) The Court held a hearing on the matter on December 13, 7 2010. Jeff Goldman appeared on behalf of Plaintiff ADT. Samy Henein appeared

8 telephonically on behalf of Defendant Hilway. 9 Under Federal Rule of Civil Procedure 55(c), a court may set aside a default for "good

10 cause." To determine whether good cause exists, courts should consider three factors: 11 "whether the defendant's culpable conduct led to the default; whether the defendant has a 12 meritorious defense; and whether reopening the default judgment would prejudice the 13 plaintiff." TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001) (citing 14 Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)); Franchise Holding II, LLC. v. Huntington 15 Restaurants Group, Inc., 375 F.3d 922, 925-26 (9th Cir. 2004). "The court's discretion is 16 especially broad where, as here, it is entry of default that is being set aside, rather than a 17 default judgment." O'Connor v. Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (citation and 18 quotation marks omitted). 19 Hilway contends that his default was the result of mistake and that it should be set aside

20 based upon a finding of excusable neglect and lack of prejudice. (Doc. No. 21.) Exercising 21 its discretion and considering the arguments and evidence presented by the parties, the Court 22 concludes that setting aside the default against Defendant Hilway is appropriate. Accordingly, 23 the Court GRANTS Defendant Hilway's motion to set aside default and the Court DENIES 24 Plaintiff ADT's motion for default judgment without prejudice. Defendant Hilway is directed 25 /// 26 /// 27 /// 28 ///
-210cv1812

1 to answer or otherwise respond to the complaint on or before December 15, 2010. The Court's 2 November 8, 2010 preliminary injunction order remains in effect against Defendant Hilway. 3 IT IS SO ORDERED.

4 DATED: December 13, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-310cv1812

________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT