Ewing v. McCarthy et al

Filing 34

ORDER Granting 33 Motion to Set Aside Default. Defendant Sirewest shall file in this Court, within 14 days of this order, an answer to Plaintiff's complaint. Signed by Judge Gonzalo P. Curiel on 1/4/18. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTON EWING,

Case No.: 3:17-cv-01554-GPC-RBB
Plaintiff,

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v.

ORDER GRANTING MOTION TO
SET ASIDE DEFAULT

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PATRICK McCARTHY; BRYAN
DAVID MINCEY; and SKY SIREWEST,

[ECF No. 33]

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Defendants.
Before the Court is Defendant Sirewest’s motion to set aside the default entered
against him in this case. (ECF No. 33.) On October 25, 2017, the Court denied
Defendants’ motions to dismiss. (ECF No. 22.) After the Court issued that order,
Defendant Sirewest failed to file an answer to Plaintiff’s complaint within the 14-day
period set forth in Federal Rule of Civil Procedure 12(a)(4). Upon Plaintiff’s request,
default was entered against Defendant Sirewest on December 4, 2017. (ECF No. 30.)
“The court may set aside an entry of default for good cause . . .” Fed. R. Civ. P.
55(c). Sirewest indicates in his motion that he failed to file a timely answer because his
wife has been battling brain cancer. According to Sirewest, this suit was filed and served
a month before his wife passed away, and Sirewest has since been “inundated with the
funeral arrangements, consoling his children and 9 grandchildren.” (ECF No. 33 at 3.)
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3:17-cv-01554-GPC-RBB

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Moreover, in that time Sirewest has also fell ill and has been in and out of the hospital.

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(Id.) Sirewest attaches to his motion an affidavit in which he testifies to these facts, as

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well as copies of a funeral program and his wife’s death certificate. He also attaches a

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proposed answer to Plaintiff’s complaint.

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The Court finds that Defendant Sirewest has shown good cause to set aside the

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default entered against him. The Court GRANTS the motion to set aside default.

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Defendant Sirewest shall file in this Court, within 14 days of this order, an answer to

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Plaintiff’s complaint.

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IT IS SO ORDERED.
Dated: January 4, 2018

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3:17-cv-01554-GPC-RBB