United States of America, ex rel et al v. Fife Dermatology PC et al

Filing 32

ORDER Granting 30 Motion to Set Aside 28 Clerk's Entry of Default. Signed by Judge James C. Mahan on 3/17/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:17-cv-02191-JCM-DJA Document 32 Filed 03/17/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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UNITED STATES OF AMERICA and THE
STATE OF NEVADA ex rel. THOMAS
MOONEY, and THOMAS MOONEY,
INDIVIDUALLY,
Plaintiff(s),

Case No. 2:17-CV-2191 JCM (DJA)
ORDER

v.
FIFE DERMATOLOGY, PC, d/b/a
SURGICAL DERMATOLOGY & LASER
CENTER, et al,,

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Defendant(s).

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Presently before the court is Defendant Vivida Dermatology f/k/a Fife Dermatology, PC

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d/b/a Surgical Dermatology & Laser Center’s motion to set aside clerk’s entry of default. (ECF

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No. 30). Plaintiff Thomas Mooney has not responded and the deadline to do so has since passed.

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(ECF No. 31).

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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.” Fed. R. Civ. Pro. 55(c). To determine if good cause exists, the court

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considers: “(1) whether the party seeking to set aside the default engaged in culpable conduct

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that led to the default; (2) whether it had no meritorious defense; or (3) whether reopening the

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default judgment would prejudice the other party.” United States v. Signed Personal Check No.

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730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (internal quotations marks

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omitted). “[J]udgment by default is a drastic step appropriate only in extreme circumstances; a

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case should, whenever possible, be 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

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

James C. Mahan
U.S. District Judge

Case 2:17-cv-02191-JCM-DJA Document 32 Filed 03/17/21 Page 2 of 2

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

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court’s discretion is especially broad where . . . it is entry of default that is being set aside, rather

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than a 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 he 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

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

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claims 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. 30).

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Accordingly,

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

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set aside clerk’s entry of default (ECF No. 30) be, and the same hereby is, GRANTED.
DATED March 17, 2021.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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