United States of America v. Dillon et al

Filing 29

MEMORANDUM DECISION AND ORDER - Defendant Cherie Dillons Motion to Rescind Clerks Entry of Default (Dkt. 20) is DENIED. Signed by Senior Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Plaintiff,

Case No. 1:23-cv-00355-BLW
MEMORANDUM DECISION
AND ORDER

v.
CHERIE R. DILLON, individually
and as the trustee of THE KENNETH
AND CHERIE DILLON LIVING
TRUST; KENNETH G DILLON,
individually and as the trustee of THE
KENNETH AND CHERIE DILLON
LIVING TRUST; THE KENNETH
AND CHERIE DILLON LIVING
TRUST; THE KENNETH AND
CHERIE DILLON IRREVOCABLE
TRUST; AND SUE SHELLY, trustee
of THE KENNETH AND CHERIE
DILLON IRREVOCABLE TRUST,
Defendants.

INTRODUCTION
Before the Court is Defendant Cherie R. Dillon’s pro se Motion to Rescind
Clerk’s Entry of Default (Dkt. 20). For the reasons explained below, the Court will
deny the motion.
DISCUSSION
The United States filed this quiet title action on August 8, 2023. The
MEMORANDUM DECISION AND ORDER - 1

complaint names the following defendants: (1) Cherie R. Dillon, both individually
and as trustee of the Kenneth and Cherie Dillon Living Trust (the “Dillon Living
Trust”); (2) Kenneth G. Dillon, individually and as trustee of the Dillon Living
Trust ; (3) the Dillon Living Trust; (4) the Kenneth and Cherie Dillon Irrevocable
Trust (the “Dillon Irrevocable Trust”); and (5) Sue Shelley, as trustee of the Dillon
Irrevocable Trust. Only one defendant—Cherie Dillon—has responded to the
complaint. She responded with a motion to dismiss, which the Court denied. See
Dkts. 8, 17. The remaining defendants have not appeared in this action.
Accordingly, on December 4, 2023, the Clerk entered these defendants’ defaults.
See Dkt. 19. Shortly thereafter, Ms. Dillon filed the pending motion, which is
styled as a “Motion Request to Rescind Clerk’s Entry of Default.” See Dkt. 20.
Within her motion, Ms. Dillon argues that the default should be set aside as to her
husband, Kenneth Dillon.
The Court will deny this motion. Under Federal Rule of Civil Procedure
55(c), the Court may set aside an entry of default for good cause. Here, Mr. Dillon
has not even appeared in the action; rather, a co-defendant is seeking relief on his
behalf. More specifically, Ms. Dillon is effectively seeking to represent her
husband in an effort to have the default entered against him set aside. This is not
permissible. If Mr. Dillon wishes to appear in this action, he must do so on his
own—either through an attorney or acting pro se. For this reason, the Court will
MEMORANDUM DECISION AND ORDER - 2

not set aside the default against any of the non-appearing defendants based on the
pending filing, filed only by Ms. Dillon.
Finally, the Court notes that Ms. Dillon filed a notice of appeal, which
would ordinarily strip this Court of jurisdiction. See Dkt. 22. But that is not so
here, because this Court has not yet entered a final decision. Rather, at this stage of
the proceedings, the Court has simply denied Ms. Dillon’s motion to dismiss, and
she is seeking to appeal that order. The problem is that a denial of such a motion
constitutes an interlocutory order that is not immediately appealable. The Ninth
Circuit agreed with this assessment; on March 1, 2024, the circuit dismissed the
appeal because “the order [Ms. Dillon] challenged in the appeal is not final or
appealable.” See Mar. 1, 2024 Order, Dkt. 28.
ORDER
IT IS ORDERED that Defendant Cherie Dillon’s Motion to Rescind
Clerk’s Entry of Default (Dkt. 20) is DENIED.
DATED: March 26, 2024
_________________________
B. Lynn Winmill
U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 3