Mizzoni v. State of Nevada ex rel et al

Filing 127

ORDER that ECF No. 77 Plaintiff's Objection is overruled; clerk directed to strike ECF No. 94 Plaintiff's reply in support of his Objection. Signed by Judge Miranda M. Du on 1/2/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOSEPH L. MIZZONI,

Case No. 3:15-cv-00499-MMD-WGC

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Plaintiff,
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ORDER

v.
STATE OF NEVADA, et al.,

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Defendants.

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Before the Court is Plaintiff’s objection (“Objection”) to the Magistrate Judge’s

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decision to grant Defendants’ Motion to Set Aside Entry of Default (“Defendants’ Motion)

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(ECF No. 78). (ECF No. 77.) Defendants filed a response (ECF No. 85) to which Plaintiff

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has replied (ECF No. 94.) However, Plaintiff failed to seek leave of the court to file his

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reply as required under LR IB 3-1(a). This Court finds that a reply brief is not necessary

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or helpful. Accordingly, the Court will strike Plaintiff’s reply brief (ECF No. 94).

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Magistrate judges are authorized to resolve pretrial matters subject to district court

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review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A);

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see also Fed. R. Civ. P. 72(a); L.R. IB 3-1(a) (“A district judge may reconsider any pretrial

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matter referred to a magistrate judge in a civil or criminal case pursuant to LR IB 1-3,

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where it has been shown that the magistrate judge’s ruling is clearly erroneous or contrary

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to law.”). A magistrate judge’s pretrial order issued under 28 U.S.C. § 636(b)(1)(A) is not

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subject to de novo review, and the reviewing court “may not simply substitute its judgment

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for that of the deciding court.” Grimes v. City & County of San Francisco, 951 F.2d 236,

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241 (9th Cir. 1991).

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Rule 55(c) of the Federal Rules of Civil Procedure provides that “[t]he court may

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set aside an entry of default for good cause . . . .” Fed. R. Civ. P. 55(c). In determining

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whether good cause exists, a court considers three factors: “‘(1) whether the plaintiff will

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be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether

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culpable conduct of the defendant led to the default.’” Brandt v. Am. Bankers Ins. Co. of

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Fla., 653 F.3d 1108, 1111 (9th Cir. 2011) (quoting Falk v. Allen, 739 F.2d 461, 463 (9th

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Cir. 1984)). “These factors . . . are disjunctive.” Brandt, 653 F.3d at 1111 (quoting Falk,

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739 F.2d at 463)). Thus, the court may refuse to set aside default if it holds any one of

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the three factors is true. U.S. v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615

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F.3d 1085, 1091 (9th Cir. 2010).

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However, strong policy in the Ninth Circuit is to decide cases on their merits.

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“‘[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.’” Mesle, 615 F.3d at 1091

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(quoting Falk, 739 F.2d at 463) (alternation in original). The Falk factors are more liberally

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applied in the context of a clerk's entry of default than in the default judgment context.

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Mesle, 615 F.3d at 1091 n.1 (quoting Cracco v. Vitran Exp., Inc., 559 F.3d 625, 631 (7th

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Cir. 2009)); see also Haw. Carpenter's Trust v. Stone, 794 F.2d 508, 513 (9th Cir. 1986).

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“‘The court's discretion is especially broad where . . . it is entry of default that is being set

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aside, rather than a default judgment.’” Aristocrat Techs, Inc. v. High Impact Design & Ent

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m't, 642 F. Supp. 2d 1228, 1233 (D. Nev. 2009) (quoting O'Connor v. State of Nev., 27

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F.3d 357, 364 (9th Cir. 1994)).

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The Magistrate Judge properly applied the Falk factors in setting aside the Clerk’s

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entry of default against Defendant C. Smith. (ECF No. 78.) As the Magistrate Judge

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explained, the Attorney General’s failure to appear for Smith was not willful, Smith made

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a meritorious defense and any prejudice to Plaintiff can be cured by extending the

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discovery deadline as to Smith. (Id. at 2.) Plaintiff cannot show that the Magistrate Judge’s

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decision is clearly erroneous. In fact, the Court agrees with the Magistrate Judge’s

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findings. Plaintiff’s Objection is therefore overruled.
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It is therefore ordered that Plaintiff’s Objection (ECF No. 77) is overruled.

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The Clerk is directed to strike Plaintiff’s reply in support of his Objection (ECF No.

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94).

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DATED THIS 2nd day of January 2018.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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