United States District Court, N.D. California
September 16, 2005.
UNITED STATES OF AMERICA, Plaintiff,
JOSEPH M. PALOMBA, Defendant.
The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge
ORDER DENYING MOTION TO SET ASIDE DEFAULT JUDGMENT AND VACATING
Defendant Joseph M. Palomba now moves to set aside the default
judgment entered against him in 2003. Because he fails to meet
the standard set forth in Federal Rule of Civil Procedure 60(b),
this motion is DENIED.
The above-captioned action was commenced on October 16, 2002.
The United States of America filed suit against Mr. Palomba to
reduce his outstanding tax assessments to judgment. The summons
and the complaint were personally served upon defendant on
October 25, 2002. Although defendant moved for an enlargement of
time to answer, this motion was denied because no good cause was
shown. On December 17, 2002, the Clerk entered default against
defendant. Plaintiff subsequently moved for default judgment.
Defendant filed no opposition. On February 20, 2003, a default
judgment was granted in the amount of $330,483.10 for defendant's
1998, 1999, and 2000 tax liabilities.
The case file was closed and there was no further activity in
this action until August 10, 2005, when defendant moved to quash
a noticed deposition. This was apparently prompted by plaintiff's attempts to obtain information necessary to execute
the default judgment. After defendant's motion was denied, he
filed a motion for an in camera hearing as well as a second
motion to quash, both of which were denied. Defendant then filed
the instant motion to set aside the default judgment.
Pursuant to Federal Rule of Civil Procedure 55(c), a default
judgment may be set aside "in accordance with Rule 60(b)." Relief
from a final judgment may be granted for the following reasons:
(1) mistake, surprise, or excusable neglect; (2) newly discovered
evidence; (3) fraud, misrepresentation or other misconduct; (4) a
void judgment; (5) a satisfied or discharged judgment; or (6) any
other reason justifying relief from operation of judgment. A
motion to set aside "shall be made within a reasonable time, and
for reasons (1), (2), and (3) not more than one year after" the
default judgment. FRCP 60(b).
Defendant makes his motion under FRCP 60(b)(6), arguing that he
was denied his constitutional right to defend himself (Br. 2).
Specifically, defendant was in a "halfway-house environment,
under 23-hour lockdown" (Br. 3). Defendant asserts that
plaintiff's counsel, who allegedly participated in a separate
criminal proceeding against defendant, should have moved for a
stay of proceedings or refrained from filing an action until he
was released and the "playing field was level" (ibid.).
Defendant further argues that a temporary stay would have
resulted in no prejudice to plaintiff, because he was released
from the halfway house on March 13, 2003, after his six-month
stay expired (ibid.; Moore Exh. 6 at 15:3-11).
Relief under FRCP 60(b)(6) "must be requested within a
reasonable time" and "a petitioner is required to establish the
existence of extraordinary circumstances which prevented or
rendered him unable to prosecute an appeal." Twentieth
Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th
Cir. 1981). This order finds that the motion was not filed within
a reasonable time. Defendant waited two and a half years before
moving to set aside the default judgment against him. Nor has
defendant succeeded in establishing extraordinary circumstances.
By his own admission, he was "granted a `special' eight-hour pass
to visit the law library to specifically respond to this
complaint" (Br. 3; see also Moore Exh. 1). The record reflects that defendant frequently used his on-going
privileges to leave the premises, yet only visited the law
library a handful of times (Moore Exh. 3).
Moreover, defendant claims he was released from the halfway
house on March 13, 2003, a mere three weeks after plaintiff's
motion for default judgment was granted. As his movements were no
longer restricted at that time, defendant could have challenged
the default judgment in more a timely fashion. Defendant has
proffered no reasons for his failure to file a Rule 60(b) motion
earlier or appeal to the Ninth Circuit when he had the
opportunity to do so. This alone is dispositive.
Even if the Court were to forgive the untimeliness of the
motion, defendant has not made a sufficient showing to set aside
a default judgment under FRCP 60(b). The Ninth Circuit has held
that three factors must be considered on such a motion: "(1)
whether the plaintiff will be prejudiced, (2) whether the
defendant has a meritorious defense, and (3) whether culpable
conduct of the defendant led to the default." Falk v. Allen,
739 F.2d 461, 463 (9th Cir. 1984).
While it is true that whenever possible, cases should be
decided on the merits, this does not mean that this interest
always outweighs the interest in the finality of judgments.
"[T]he party seeking to vacate a default judgment bears the
burden of demonstrating that these factors favor vacating the
judgment." TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691,
696 (9th Cir. 2001). Here, defendant has presented no meritorious
defense. As such, there is no indication that the result would
have been different had the case been decided on the merits and
"nothing but pointless delay can result from reopening the
judgment." Id. at 697.
For the foregoing reasons, defendant's motion is DENIED. The
hearing on this motion, currently scheduled for SEPTEMBER 29,
2005 AT 8:00 A.M., is VACATED.
IT IS SO ORDERED.
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