The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER DENYING MOTION FOR DEFAULT JUDGMENT, AND SETTING ASIDE CLERK'S ENTRY OF DEFAULT
On January 8, 2007, the Clerk entered default against Defendant Joseph Werwage, pursuant to Fed. R. Civ. P. 55(b)(1). On February 1, 2007, Plaintiff moved for a default judgment against Mr. Werwage. On February 9, 2007, Mr. Werwage, who is proceeding pro se, filed a motion to set aside the clerk's entry of default (styled "Motion to Set Aside Default Judgment"), to which Plaintiff filed its opposition on February 20, 2007. Defendant Werwage filed no opposition or reply.
I. Procedural History and Discussion
Defendant Werwage has previously defaulted and moved to set aside the entry of default. His previous default was entered on September 8, 2006. On September 14, 2006, Plaintiff moved for default judgment against him. On October 3, 2006, he filed a motion to set aside his previous default, pleading ignorance of the rules of procedure. (Decl. of Joseph Werwage in Supp. of Mot. to Set Aside Default, filed Oct. 3, 2006, at 1.) He declared he had educated himself in the rules and obtained software to allow him to create his own pleadings. (Id. at 2.) He attempted to file his answer, which on October 4, 2006 was rejected by discrepancy order because of the entry of default, with the notation "Rejected Pending Hearing on Order to Show Cause." As the discrepancy order indicated, his answer was returned to him and the Court did not retain a copy of it.
On November 15, 2006, the Court granted Defendant Werwage's motion to set aside the default, and denied Plaintiff's motion. The Court granted Defendant Werwage ten days from issuance of the order in which to file his answer. He did not do so, and Plaintiff again moved for entry of default judgment.
In his the memorandum supporting his motion of February 9, 2007, Defendant Werwage makes a number of misstatements. He says when he submitted his answer previously, it "was attached to the motion [of October 3, 2006] and to be filed only if and when Defendants [sic] motion was granted." (Memo of P & A at 2:2--3.) He goes on to charge the Clerk with error: "The court clerk mistakenly filed the answer at the same time as the motion to set aside, instead of including the answer which should have an attachment and for that reason it was rejected." (Id. at 4--5.) He then avers he "did file his answer accompanying his earlier motion to set aside." (Id. at 6--7.) Defendant Werwage's statement is correct in one respect: in his declaration accompanying his motion of October 3, 2006, he included a request "to accept and file the Answer accompanying this motion and set the matter for trial." (Werwage Decl., filed Oct. 3, 2006, at 2:3--4.)
Even if Defendant Werwage were correct in believing the Clerk's office mistakenly took his answer as a separate filing, he has known of this fact for several months now. Similarly it was made clear to him that his submitted answer was rejected, not filed. The discrepancy order issued October 3, 2006 makes plain his answer was not to be filed, the Court did not retain a copy, and the copy Defendant Werwage attempted to file was being returned to him. Even if Defendant Werwage were correct in his belief that it was the Court's responsibility to file his rejected answer for him after, he knew the Court could not have done so, since the Court did not have a copy of it. Furthermore, the Court's order of November 15, 2006 makes plain the Court would not be filing anything for Defendant Werwage, and that it was his own responsibility to file his answer. (See Order of Nov. 15, 2006, at 4:3--4 (granting Defendant Werwage "leave to file his answer within ten days of the file stamp date on the order").) Moreover, Defendant Werwage's previously representations to the Court show he knew his answer had been rejected: he stated that although he had prepared an answer, "the Court could not accept it because it did not conform with the rules of pleading . . . ." (Motion filed Oct. 3, 2006, at 2:8--9.) The Court therefore finds the reason for Defendant Werwage's recent default is his own culpable neglect.
Setting aside an entry of default is governed by Fed. R. Civ. P. 55(c), which provides that a default may be set aside for "good cause." "Good cause" to set aside an entry of default under Rule 55(c) is a lighter burden than that required under Rule 60(b) when a party seeks to set aside a default judgment already entered. Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981) ("[T]he standard for setting aside the entry of a default pursuant to Rule 55(c) is less rigorous than the 'excusable neglect' standard for setting aside a default judgment by motion pursuant to Rule 60(b).") A "good cause" determination as requiring the application of a three-factor test: "[A] district court may deny a motion to vacate a default judgment if: (1) the plaintiff would be prejudiced if the judgment is set aside, (2) defendant has no meritorious defense, or (3) the defendant's culpable conduct led to the default." Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000) (quotations and citation omitted). Because this tripartite test is disjunctive, the district court is free to deny the motion if any of the three factors was true. Id.
As a general matter, motions to set aside default should be liberally granted and are left to the discretion of the court. See Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). "[J]udgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits." Id. Any doubt should be resolved in favor of setting aside the default in order to decide cases on their merits. Schwab v. Bullock's, Inc., 508 F.2d 353, 355 (9th Cir. 1974).
The Court construes Defendant Werwage's pleadings liberally because he is proceeding pro se. Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir.2001). Although he is proceeding pro se, he is still required to follow the federal and local rules. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants.")
A. Prejudice to Plaintiff
Defendant Werwage did not participate in the Fed. R. Civ. P. 26(f) conference on November 17, 2006, in violation of Magistrate Judge Jan Adler's order of October 26, 2006, and in spite of being notified by Plaintiff's counsel. (P's Opp'n at 9:6--12). He did, however, participate in a telephonic case management conference before a Judge Arbitrator on February 9, 2007. The next case management conference is scheduled for May 9, 2007.
Plaintiff argues it has been prejudiced by delay. While this is true, it does not appear the prejudice would be great if the default were set aside. Plaintiff's theory of the case against Defendant Werwage is that he is liable under an alter ego or agency theory for the actions of Elite Sports Group, ("ESG"). (Complaint at 2, ¶¶ 10, 12.) Another Defendant, Laura Brown,*fn1 stands in a similar position to Defendant Werwage, as co-owner of ESG. To an extent, she has represented his ...