The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING EX PARTE APPLICATION TO REOPEN CASE AND SET ASIDE ENTRY OF DEFAULT [Motion filed on December 13, 2010]
Presently before the court is Claimant Robert DePalma's ex parte application to reopen the case and to set aside the court's entry of default judgment.
Rule 55(c) provides the standards for determining whether relief from a default entry or default judgment should be granted. It states that an entry of default may be set aside "[f]or good cause shown." Fed. R. Civ. P. 55(c). But when default judgment has been entered, Rule 55(c) refers to Rule 60(b), which provides that relief from a final judgment may be granted only under the following specific conditions:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. Rule 60(b); see also O'Connor v. Nevada, 27 F.3d 357, 364 (9th Cir. 1994).
Here, DePalma argues that he was misled by Plaintiff when Plaintiff assured DePalma that Plaintiff was interested in resolving the issue of the Dinosaur eggs without litigation. (Ex Parte Motion ¶ 7.) DePalma further argues that Plaintiff failed to commence its lawsuit for possession of the eggs "in a prompt and reasonable manner" and caused various delays thereby denying DePalma due process. (Id. ¶¶ 9, 13, 14, 15, 19, 20.) DePalama also argues that his age, financial constraints, and poor health affected his ability to timely appear. (Id. ¶¶ 22-27.) In sum, DePalma argues that his default was "not willful, but the result of excusable neglect." (Id. ¶ 30.)
The standard for setting aside entry of default judgment under Rule 60(b) is a rigorous one. Here, the court finds that insufficient good cause has been presented to satisfy the court that relief from default judgment is warranted in this instance. DePalma was in continuous contact with the Plaintiff, appraised of all the court dates and appearance deadlines, and failed to timely appear and object to the entry of default, and, thereafter, the entry of default judgment. The court is not satisfied that DePalma's failure to timely pursue his alleged claim was the result of mistake, inadvertence, surprise, or excusable neglect. For the foregoing reasons, DePalma's ex parte application is DENIED.