Entsminger v. Aranas et al.

Filing 188

ORDER - Defendant Sunshine Flores' Motion to Set Aside Clerks Default (ECF No. 168 ) is GRANTED. Therefore, Plaintiff's Motion for Entry of a Default Judgment against Flores (ECF No. 149 ) is DENIED. Signed by Magistrate Judge William G. Cobb on 4/16/2020. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:16-cv-00555-MMD-WGC Document 188 Filed 04/16/20 Page 1 of 7

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GREGORY WEST ENTSMINGER,

Case No.: 3:16-cv-00555-MMD-WGC

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Plaintiff,

ORDER

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v.

Re: ECF Nos. 149 and 168

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ROMEO ARANAS, et al.,
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Defendants.
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INTRODUCTION
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Before the court is Plaintiff’s motion to enter a default judgment against Sunshine Flores
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(ECF No. 149). A default had been previously entered against Flores on June 4, 2019 (ECF No.
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67). Defendant Flores opposed the request for a default judgment (ECF No. 168), and Plaintiff
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has replied in a document that addresses both the default judgment issue and the Flores’ Motion
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to Set Aside the Default (also contained within ECF No. 168) (ECF Nos. 183-1 and 185). 1
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Defendant Sunshine Flores’ Opposition to Plaintiff’s Motion to Enter Default Judgement
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also included her Motion to Set Aside Clerk’s Default (ECF No. 168). Plaintiff has opposed the
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motion (ECF Nos. 183-1 and 185). No reply memorandum has yet been filed by Defendant Flores.
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ECF No. 130 was Plaintiff’s motion to permit the late filing of his combined reply memorandum, which
the court granted in ECF No. 184. Plaintiff’s proposed filing for which he had sought leave to file was
logged in as ECF No. 183-1 and which also appears on the court’s docket as ECF No. 185.

Case 3:16-cv-00555-MMD-WGC Document 188 Filed 04/16/20 Page 2 of 7

1 However, because the court deems it has sufficient argument and information to resolve Defendant
2 Flores’ Motion, the court will proceed to resolve the Motion to Set Aside the Default.
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In that regard, Defendant Flores’ motion is granted and the clerk shall strike the default

4 (ECF No. 67). Because a default is a predicate to securing a default judgment, Plaintiff’s Motion
5 for a Default Judgment (ECF No. 149) is necessarily denied. 2
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BACKGROUND

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Plaintiff is an inmate in the Nevada Department of Corrections (NDOC) and is currently

8 housed at Northern Nevada Correctional Center (NNCC). On September 25, 2018, Plaintiff filed
9 a Second Amended Complaint (SAC) (ECF No. 18), which the court screened on September 14,
10 2018. (ECF No. 21.) Chief District Judge Miranda M. Du allowed Plaintiff’s SAC to proceed on
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Portion of Count I, alleging legal mail violations, to proceed against
Jane/John Does when Plaintiff learns their identities.

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Count II, alleging retaliation, to proceed against Defendants Dr. Vanhorn,
Keast, Jacobs, Missy (dental assistant), Dr. Yup, McBroom, Moyle,
Navarro, Walsh, Dr. Aranas, and Austin.

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Count III, alleging deliberate indifference to serious medical needs, to proceed
against Defendants Dr. Johns, Nurse Kathy, Melissa Mitchell, Keast, Baca, and
Aranas.

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Count IV, alleging deliberate indifference to serious dental needs, to proceed
against Defendants Dr. Remsen, Ilene Sanborne, Keast, Lois Elliott, Dr. Vanhorn,
Missy (dental assistant), Perry, Linda Grankowski, Aranas, Jacobs, Dr. Yup,
Dr. Peterson, Jenifer (dental assistant), Summer (dental assistant), Dr. Swope,
Snider, and Dr. Bannister.

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All parties are reminded that LR IC 2-2(b) requires separate filings for each event. Thus, Plaintiff’s
reply document (ECF No. 183-1/185) should have been filed separately (1) as to Plaintiff’s request for a
22 default judgment and (2) his opposition to Defendant’s request for setting aside the default. Similarly,
Defendant’s motion to set aside the default and her opposition to Plaintiff’s request for a default judgment
(ECF No. 168) should have been filed separately.

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Count V, alleging conspiracy, to proceed against Defendants Sandoval, Miller,
Masto, Laxalt, Cegavske, Clinger, Wilden, Aranas, Bannister, Jacobs, Keast, Nurse
Sunshine, Reynolds, Haycock, Cox, and Dzurenda.

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Count VI, alleging equal protection violations based on delaying/denying health
are to sex offenders, to proceed against Defendants Missy (dental assistant), Ilene
Sanborne, Nurse Sunshine, Jenifer (dental assistant), Perry, Keast, Jacobs, Dr. Yup,
Dave (clinic supervisor), Laura (dental assistant), and Alisha (dental assistant).

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Portion of Count VII, alleging due process violations for gold fixtures, to
proceed against Defendants Dr. Remsen, Keast, Aranas, and Cox.

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Portion of Count VII, alleging due process violations related to inmate trust
accounts, to proceed against Defendants Missy (dental assistant), Sanborne,
Lara (dental assistant), Dave (clinic supervisor), Melissa Mitchell, Candice (clinic
supervisor), Jacobs, Keast, Nurse Sunshine, Reynolds, Haycock, Cox, and
Aranas.

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Count VIII, alleging state statutory violations, to proceed based on supplemental
jurisdiction against Defendants Dr. Yup, Dr. Swope, Dr. Vanhorn, Dr. Peterson,
Dr. Remsen, Cox, Perry, Snider, Jacobs, Keast, Missy (dental assistant), Sanborne,
Lara (dental assistant), Dave (clinic supervisor), Melissa Mitchell, Candice (clinic
supervisor), Nurse Sunshine, Reynolds, Haycock, Sandoval, Miller, Masto, Aranas,
and Bannister.

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On May 30, 2019, Plaintiff filed a Request for Entry of Default Judgment by Clerk of Court
asking the court to enter a default against certain Defendants, including Flores. (ECF No. 64.) The
court granted his request, but only to the extent that entry of a default (not a default judgment) was
authorized as against certain defendants, one of whom was Flores (ECF No. 66). The clerk
thereafter entered default – but not a default judgment - against Defendant Flores on June 4, 2019.
(ECF No. 67.)
The basis for entry of the default was a receipt from the U.S. Marshal’s Service indicating
that the process server left a copy of the Summons and SAC with an entity the process server called
“Legal Services Agency.” (ECF No. 50-1.) Flores’ Declaration states she does not know what

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1 “Legal Services Agency” is (ECF 168-1 at 2). 3 Flores also states she does not recall authorizing
2 it, or any entity, to accept service of process on her behalf in lieu of personal service to her. (ECF
3 No. 168, see Declaration of Sunshine Flores, attached as Exhibit A at ¶¶ 7-8.) Additionally,
4 Defendant states the “Legal Services Agency” referenced in the Proof of Service (ECF No. 50-1)
5 did not forward a copy of the Summons or SAC to Flores. (Id. at ¶ 9.) Apparently, Defendant
6 Flores became aware that Plaintiff had named her as a Defendant in this action in February 2020,
7 when the Office of Attorney General (“OAG”) finally located her and provided her a copy of the
8 Summons and SAC. (Id. at ¶¶ 5-6, 10.) 4
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Defendants further claim that upon receipt of the February 2020 communication,

10 Defendant Flores submitted the paperwork necessary for the OAG to represent her in this matter.
11 (ECF No. 168, Ex. A at ¶ 11.) The OAG appeared for Flores on March 13, 2020, and accepted
12 service of the Summons and SAC on her behalf the same day. (ECF No. 166.) Defendant Flores
13 also joined in the existing Defendants’ Answer to Second Amended Complaint (ECF No. 39) that
14 same day. (ECF No. 167.)
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Plaintiff objects to the Flores declaration because although signed under penalty of perjury, was not
dated. (ECF No. 185 at 2.) Although the court agrees the better form would have been to have dated the
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declaration when it was executed, that omission is not fatal to the declaration. It was obviously executed
sometime between when Flores learned of the lawsuit against her “in February 2020” and when the
21 Attorney General entered an appearance for Flores on March 13, 2020 (ECF No. 168 at 2).

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Plaintiff similarly appears unaware of what the “Legal Services Agency” is which the US Marshal states
it served. Plaintiff wrote a letter to the USMS on March 24, 2020, requesting an explanation as to the
service which was purportedly effected but has received no response (ECF No. 185 at 2)

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DISCUSSION
The court may set aside an entry of default or default judgment for good cause. Fed. R.

3 Civ. P. 55(c). Defaults are disfavored by the courts, since defaults are inconsistent with the federal
4 court’s preference for resolving dispute son the merits. Moreno v LG Elecs. USA, Inc., 800 F. 3d
5 692, 698 (5th Cir 2015); United States v. Signed Personal Check No. 730 of Yurban S. Mesle, 615
6 F.3d 1085, 1091 (9th Cir. 2010).
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The court should look at three factors when determining to set aside default: (1) whether

8 the party seeking to set aside the default engaged in culpable conduct that led to the default;
9 (2) whether it has a meritorious defense; or (3) prejudice to the other party. Signed Personal Check
10 No. 730 of Yurban S. Mesle, 615 F.3d at 1091 (9th Cir. 2010). Satisfaction of any of the three
11 factors will justify the setting aside of a default. Brandt v American Bankers Insurance Co. of
12 Florida, 653 F. 3d 1108, 1111 (9th Cir 2011).
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As to the first factor, a defendant engages in culpable conduct when it “has received actual

14 or constructive notice of the filing of the action and intentionally failed to answer.” TCI Group
15 Life Ins. Plan. v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001) (emphasis original) (citations and
16 internal quotation marks omitted), overruled in part on other grounds in Egelhoff v. Efelhoff ex
17 rel. Breiner, 532 U.S. 141 (2000); Signed Pers. Check No. 730, 615 F. 3d at 1092 The Flores
18 declaration states that she did not learn of the action against her until February 2020, so the court
19 concludes she is not guilty of culpable conduct.
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As to the second factor, i.e., whether the defendant has a meritorious defense, the burden

21 is not heavy. Instead, it is minimal, and the facts alleged by the defendant, if true, must constitute
22 a defense.” TCI, 244 F3d at 700.
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The last factor is whether the plaintiff can demonstrate prejudice to the plaintiff if the

2 default is set aside. A finding of prejudice to the nonmoving party requires more than a simple
3 delay in resolution of the case. TCI, 244 F.3d at 701. “[M]erely being forced to litigate on the
4 merits cannot be considered prejudicial for purposes of lifting a default judgment[.]” TCI, 244 F.3d
5 at 701. The standard is whether the plaintiff’s “ability to pursue his claim will be hindered.” Falk v.
6 Allen 739 F.2d 461, 463 (9th Cir. 1984).
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“‘The court’s discretion is especially broad where, as here, it is entry of default that is being

8 set aside, rather than a default judgment.’” O’Connor v. State of Nev., 27 F.3d 357, 364 (9th Cir.
9 1994) (quoting Mendoza v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986)). “‘Where
10 timely relief is sought from a default … and the movant has a meritorious defense, doubt, if any,
11 should be resolved in favor of the motion to set aside the default so that cases may be decided on
12 their merits.’” Id. (quoting Mendoza, 783 F.2d at 945-46). Because of the preference for deciding
13 cases on the merits whenever possible, motions for relief from default entries should be viewed
14 liberally. See Falk, supra, 739 F.2d at 463 (9th Cir. 1984). All doubts should be resolved in favor
15 of the party seeking relief. See, e.g., Schwab v. Bullock’s Inc., 508 F.2d 353, 355 (9th Cir. 1974).
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CONCLUSION
Defendant Sunshine Flores’ Motion to Set Aside Clerk’s Default (ECF No. 168) is

18 GRANTED. A default is a prerequisite to the entry of a default judgment, Giddens v Lawson,
19 734 Fed Appx. 706, 711 (11th Cir 2018); VLM Food Trading Int’l, Inc. v Illinois Trading Co., 811
20 F.3d 247, 255 (7th Circ 2016). Because the default against Defendant Flores has been stricken,
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1 Plaintiff is not entitled to a default judgment against Flores. Therefore, Plaintiff’s Motion for Entry
2 of a Default Judgment against Flores (ECF No. 149) is DENIED. 5
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The parties should be aware of the following:

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1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule IB 3-1 of the
Local Rules of Practice, specific written objections to the court’s order within
fourteen (14) days after service of the order. These objections should be titled
“Objections to Magistrate Judge’s Order” and should be accompanied by points
and authorities for consideration by the District Court.

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2. That this Order is not an appealable order and that any notice of appeal pursuant to
Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court’s
judgment.

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IT IS SO ORDERED.

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Dated: April 16, 2020.

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_________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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The finds it unnecessary to conduct oral arguments on these motions and Plaintiff’s request in that
regard (ECF No. 185) is also denied. See, LR 78-1.

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