O v. Flynn Group, Inc. a/d/b/a Keith Flynn Everton

Filing 11

ORDER granting 10 Motion to Set Aside 9 Clerk's Default. Signed by Judge James C. Mahan on 10/20/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MEL O, f/k/a MELISA OEHMKE,

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Plaintiff(s),

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Case No. 2:16-CV-1712 JCM (NJK)
ORDER

v.
THE FLYNN GROUP, INC.,

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Defendant(s).

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Presently before the court is defendant Flynn Group, Inc.’s motion to set aside clerk’s entry

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of default. (ECF No. 10). Plaintiff Mel O has not responded and the deadline to do so has since

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passed.

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On September 2, 2016, plaintiff filed a motion for clerk’s entry of default (ECF No. 8),

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which the clerk entered on September 6, 2016 (ECF No. 9). Thereafter, defendant filed the instant

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motion seeking to set aside the clerk’s entry of default. (ECF No. 10).

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Federal Rule of Civil Procedure 55(c) provides that “[t]he court may set aside an entry of

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default for good cause . . . .” To determine if good cause exists, the court considers: “(1) whether

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the party seeking to set aside the default engaged in culpable conduct that led to the default; (2)

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whether it had no meritorious defense; or (3) whether reopening the default judgment would

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prejudice the other party.” United States v. Signed Personal Check No. 730 of Yubran S. Mesle,

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615 F.3d 1085, 1091 (9th Cir. 2010) (internal quotations marks omitted). “[J]udgment by default

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is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be

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decided on the merits.” Id.

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While the court considers the same factors prior to vacating an entry of default as it would

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a default judgment, the test is less stringent when a default judgment has not been entered. See

James C. Mahan
U.S. District Judge

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Hawaii Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986). Indeed, “[t]he court’s

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discretion is especially broad where . . . it is entry of default that is being set aside, rather than a

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default judgment.” Mendoza v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986).

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In considering the three relevant factors, the court finds that good cause exists to set aside

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the clerk’s entry of default (ECF No. 9). Prejudice is unlikely to result and plaintiff has not

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opposed the motion, nor has she moved for default judgment. See LR 7-2(d) (“[T]he failure of an

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opposing party to file points and authorities in response to any motion shall constitute a consent to

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the granting of the motion.”). Further, there is a strong policy favoring the adjudication of claims

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on their merits instead of procedural technicalities. For these reasons, the court will grant

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defendant’s motion to set aside the clerk’s entry of default. (ECF No. 10).

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant’s motion to set

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aside clerk’s entry of default (ECF No. 10) be, and the same hereby is, GRANTED.
DATED October 20, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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