UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
May 17, 2011
VINCENT AND LIEN TANG,
CALIFORNIA RECONVEYANCE CO., ET AL.,
The opinion of the court was delivered by: Lucy H. Koh United States District Judge District of California
ORDER GRANTING MOTION TO SET ASIDE ENTRY OF DEFAULT AND) DENYING MOTION FOR ENTRY OF DEFAULT JUDGMENT
(re: docket #78 and #83)
United States District Court District of California For the Northe Defendant Bank of America, N.A., has moved to set aside entry of default against non-party Bank of America Corporation. See Dkt. #78. Defendant Bank of America, N.A., attempted to 18 notice its motion for a hearing on June 2, 2011, but does not appear to have actually noticed its 19 motion on the Court's calendar. Plaintiffs have moved for entry of default judgment against non-20 party Bank of America Corporation, but did not notice their motion for a hearing. See Dkt. #83. 21 Pursuant to Civil Local Rule 7-1(b), the Court concludes that these motions are appropriate for 22 determination without oral argument and vacates the June 2, 2011 motion hearing. Having 23 considered the parties' submissions and the relevant law, the Court GRANTS the motion to set 24 aside entry of default against Bank of America Corporation and DENIES the motion for entry of 25 default judgment against Bank of America Corporation. The May 26, 2011 motion hearing, which 26 centers on various motions to dismiss by Defendants, and case management conference remain as 27 set. naming as Defendants California Reconveyance Company, JP Morgan Chase Bank, N.A., Chase 4 Home Finance LLC, and Washington Mutual. See Dkt. #1. The Court granted Defendants' motion 5 to dismiss the Complaint with leave to amend on December 22, 2010. See Dkt. #40. On January 6 Reconveyance Company, Bank of America, N.A., Washington Mutual Bank, and the Federal America Corporation, a separate entity than Bank of America, N.A., been named as a Defendant in 10 this action.
On April 1, 2011, Plaintiffs filed a motion for entry of default against Bank of America Corporation. See Dkt. #69. On April 7, 2011, counsel for Bank of America, N.A., erroneously 13 filed a Notice of Appearance as counsel of record for Bank of America Corporation. See Notice of of America Corporation. See Dkt. #76. On April 25, 2011, Plaintiffs filed a "Notice to Correct Typographical Error," clarifying that they intended to seek default against Defendant Bank of America, N.A., but had mistakenly sought default against non-party Bank of America Corporation.
Defendant Bank of America, N.A., has appeared in this action, and filed a motion to dismiss on April 12, 2011. On April 20, 2011, Defendant Bank of America, N.A., also filed a 21 motion to set aside entry of default against non-party Bank of America Corporation. Although Plaintiffs have acknowledged mistakenly seeking default against a non-party, Plaintiffs have filed 23 an opposition. In addition, Plaintiffs have also moved for entry of default judgment against Bank 24 of America Corporation. Finally, Plaintiffs also sought, and were denied, entry of default with 25 respect to Defendant Bank of America, N.A. See May 6, 2011 Clerk's Notice Declining Default as 26 to Bank of America, N.A. [dkt. #91]. 27 28
Pro se Plaintiffs Vincent and Lien Tang filed their initial Complaint
on July 29, 2010,
24, 2011, Plaintiffs filed a First Amended Complaint ("FAC"), naming
as Defendants California
Deposit Insurance Corporation ("FDIC"). See Dkt. #42 (emphasis added).
At no time has Bank of
United States District Court
District of California
Appearance at 2 [dkt. #70]. On April 18, 2011, the Clerk of the Court entered default against Bank party Bank of America Corporation; and (2) Plaintiffs' motion for entry of default judgment with 3 respect to non-party Bank of America Corporation. ffirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by 7 affidavit or otherwise, the clerk must enter the party's default." Fed. R. Civ. P. 55(a) (emphasis 8 added). In addition, a "court may set aside an entry of default for good cause." Fed. R. Civ. P. 9 Now before the Court are: (1) the motion to set aside entry of default with respect to non
Under Federal Rule of Civil Procedure 55(a): "[w]hen a party against whom a judgment for 55(c). To determine whether good cause exists to set aside entry of default, the court considers 10 three factors: (1) whether the defendant's culpable conduct led to the default; (2) whether the defendant has a meritorious defense; or (3) whether reopening the default (or in this case, setting aside entry of default) would prejudice the plaintiff. Id. at 1091; see also TCI Group Life Ins. Plan 13 v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001). "Crucially, however, 'judgment by default is a 14 drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits.'" See Mesle, 615 F.3d at 1091 (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)). 17 18 must be set aside. See Fed. R. Civ. P. 55(a) (discussing default with respect to a "party" to an 19 action). Bank of America Corporation is not, and has never been, a party to this action. Moreover, 20 Corporation. The actual named Defendant in this action, Bank of America, N.A., has appeared and 22 responded to Plaintiffs' FAC. Accordingly, good cause exists to set aside default against Bank of 23 Corporation, Plaintiffs' motion for entry of default judgment must also be denied. See Fed. R. Civ. 25 P. 55(b) (default judgment is only appropriate for defendants who have "defaulted").
For the Northe Here, default was mistakenly entered against non-party Bank of America Corporation, and Plaintiffs have acknowledged their mistake in seeking default against Bank of America 21 America Corporation. As the Court is setting aside entry of default against Bank of America 24
For the reasons stated above, the motion to set aside entry of default against Bank of America Corporation [dkt. #78] is GRANTED. The motion for entry of default judgment against 4 Bank of America Corporation [dkt. #83] is DENIED. The Clerk shall set aside default against 5 Bank of America Corporation. The May 26, 2011 motion hearing and case management 6 conference remain as set.
IT IS SO ORDERED.
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