The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) GRANTING MOTION TO SET ASIDE ENTRY OF DEFAULT (Doc. No. 22); (2) DENYING AS MOOT MOTION FOR EXTENSION OF TIME TO FILE RESPONSE/REPLY (Doc. No. 32); (3) DENYING MOTION FOR APPOINTMENT OF COUNSEL PAROLE COMMUNITY SERVICES, ADULT PAROLE (Doc. No. 33); (4) ORDERING FORMS TO BE DIVISION, SENT TO PLAINTIFF; and (5) ORDERING DEFENDANT
Presently before the Court is defendant Thomas Wickline's motion to set aside entry of default (Doc. No. 22); plaintiff Jose Luis DiParra's motion for extension of time to file response/reply (Doc. No. 32); and plaintiff's motion for appointment of counsel (Doc. No. 33).
On January 16, 2007, Plaintiff, a former state prisoner incarcerated at the California Rehabilitation Center in Norco, California and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) On May 1, 2007, the Court directed the U.S. Marshal to effect service on the defendants named in the First Amended Complaint. (Doc. No. 6.) Defendant Thomas Wickline, a parole agent, accepted personal service on July 6, 2007. (Doc. No. 12.) On November 6, 2007, the Court ordered the Clerk of the Court to enter default as to defendant Wickline, who had not yet filed a responsive pleading. (Doc. No. 21.) On November 13, 2007, defendant filed the instant motion. Plaintiff opposed the motion on December 26, 2007 (Doc. No. 28), and on December 31, 2007, defendant filed a reply (Doc. No. 25).
I. Defendant Wickline's Motion to Set Aside Default
Pursuant to Rule 55(c), the Court may set aside an entry of default for "good cause shown." FED.R.CIV.P. 55(c). In determining whether good cause exists, the Court must consider: (1) whether the defendant engaged in culpable conduct that led to the default; (2) whether the defendant has a meritorious defense; and (3) whether reopening the default judgment would prejudice the plaintiff. See Franchise Holding II, LLC. v. Huntington Rests. Group, Inc., 375 F.3d 922, 925-926 (9th Cir. 2004); Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984) (per curiam). A court may deny a motion to set aside an entry of default if any one of the three factors favor default. Franchise Holding, 375 F.3d at 925-26 (citing American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000)). The defendant bears the burden of establishing that the default should be set aside. Id. (citing TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001)). However, default judgments are generally disfavored and "[c]ases should be decided upon their merits whenever reasonably possible." Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986); see also TCI, 244 F.3d at 693 (recognizing "the long-standing principle that default judgments are disfavored").
Defendant Wickline argues all three factors in the "good cause" analysis favor setting aside the default.
Defendant Wickline contends his failure to file a timely answer was not the result of any culpable conduct on his part. Culpable conduct involves "not simply nonappearance following receipt of notice of the action, but rather conduct which hindered judicial proceedings as to which subject matter jurisdiction was unchallenged." TCI, 244 F.3d at 698 (citing Gregorian v. Izvestia, 871 F.2d 1515, 1525, (9th Cir. 1989)). Culpability exists "where there is no explanation of the default inconsistent with a devious, willful, or bad faith failure to respond." Id.
Here, Defendant Wickline states in his declaration he gave the summons and complaint to his supervisor, Ms. Patricia Mims. (Wickline Decl. at 1.) Ms. Mims, "not certain if the document was legitimate," noticed another state defendant was listed, "assumed the state was notified," and took no further action. (Mims Decl. at 2.) She has now learned the complaint should have been forwarded on. (Id.) Ms. Tiffany Hixon, the deputy attorney general assigned to this case after the entry of default, stated in a declaration that the California Attorney General had not been notified that ...