The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER GRANTING MOTION TO SET ASIDE THE ENTRY OF DEFAULT (ECF No. 53)
In this action, Plaintiffs Hopscotch Adoptions and Robin Sizemore (collectively "Plaintiffs") bring a claim against Defendant Vanessa Kachadurian for violating the Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030 et seq., by allegedly making false and inflammatory comments about Plaintiffs on various blogs and web sites. Plaintiffs also bring state law causes of action for defamation, negligent misrepresentation, false light, tortious interference with contractual relations, and negligent interference with a prospective business advantage. (ECF No. 1.)
The Clerk entered default against Defendant on February 22, 2010. Before the Court is Defendant's "Motion and Declaration to Vacate Judgment-Supplemental Pleading" asking the Court to "vacate judgment under Rule 4 and Rule 55 of the Federal Rules of Civil Procedure". The Court construes this as a motion to set aside the entry of default. For the reasons discussed below, Defendant's motion will be GRANTED.
Plaintiffs filed this action on December 2, 2009 and a summons was issued for Defendant Kachadurian the following day. (ECF Nos. 1 & 6.) A process server attempted to serve Defendant with the summons at her home at 8665 N. Cedar # 109, Fresno, California on at least five occasions in late December 2009 and early January 2010. (ECF No. 19-1 at 6.) Defendant has lived at this address since 2002. (ECF No. 53.) After these attempts failed, the process server obtained a new address for Defendant of 7684 N. 6th St., Fresno, California, which is Defendant's parent's home. The United States Postal Service confirmed that Defendant Kachadurian received mail at her parent's home. (Id. at 10.)
On January 6, 2010, when the process server went to 7684 N. 6th Street, Defendant's father, Vern Kachadurian, answered the door. The process server gave Vern Kachadurian a copy of the summons. (Id. at 6.) The process server then mailed a copy of the summons to 7684 N. 6th Street by certified mail on January 11, 2010. (ECF No. 19-1 at 2.)
On February 17, 2010, Plaintiffs moved for entry of default. (ECF No. 19.) The Clerk entered default against Defendant on February 22, 2010. (ECF No. 20.) On June 29, 2010, Plaintiffs filed their application for default judgment; the motion was initially scheduled to be heard on July 30, 2010. (ECF No. 23.) Due to the unavailability of the Court, the hearing was continued until August 6, 2010. (ECF No. 35.)
On July 22, 2010, Defendant, appearing pro se, filed a 118-page answer to Plaintiffs' complaint. (ECF No. 41.) The Court ordered that Defendant's answer be stricken because the Clerk had already entered default against Defendant. (ECF No. 42.) The Court informed Plaintiff that she needed to move to set aside the default before she could make any filings in the case. (Id.) Defendant then filed a Motion and Declaration to Vacate Judgment. (ECF No. 44.) The Court reviewed Defendant's Motion and, finding it deficient, informed Defendant of the relevant legal standards for a motion to set aside default and gave Defendant the opportunity to cure the deficiencies in her Motion. (ECF No. 50.)
Before the Court is Defendant's September 8, 2010 Motion and Declaration to Vacate Judgment-Supplemental Pleading.*fn1 (ECF No. 53.) Plaintiffs filed their opposition on September 24, 2010. (ECF Nos. 62-70.) The Court took the matter under submission without argument from the parties. (ECF No. 75.)
Federal Rule of Civil Procedure 55(c) states that "[t]he court may set aside an entry of default for good cause." Fed. R. Civ. P. 55(c). In considering whether there is "good cause" to set aside the entry of default, the Court considers three factors: (1) whether the defendant's culpable conduct led to the default; (2) whether the defendant has a meritorious defense to the underlying action; and (3) whether setting aside the entry of default would prejudice the plaintiff. Franchise Holding II, LLC v. Huntington Rests. Group, Inc., 375 F.3d 922, 925 (9th Cir. 2004). The Court has discretion to determine whether good cause has been shown, see Haw. Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986), and that discretion is particularly generous where the motion seeks to set aside entry of default, rather than default judgment. United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 n.1 (9th Cir. 2010) (hereafter "Mesle"). 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 will address each of the good cause factors ...