The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION TO SET ASIDE ENTRY OF DEFAULT D' ORDER DENYING AS MOOT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Doc. No. 13) (Docket No. 11)
J & J Sports Productions, Inc. ("Plaintiff") seeks default judgment against Cecilia Tolentino, individually and doing business as D'Gourmet Filipino Cuisine ("Defendant"). (Doc. 11.) Defendant seeks to have the entry of default set aside by the Court. (Doc. 13.) The matter came on regularly for hearing on May 4, 2011. Mr. Thomas Riley appeared telephonically on behalf of Plaintiff and Mr. Daniel Richardson appeared telephonically on behalf of Defendant.
For the following reasons, Defendant's motion to set aside entry of default is GRANTED. As a result, Plaintiff's motion for entry of default judgment (Doc. 11) is DENIED AS MOOT.
Plaintiff filed this action on November 9, 2010, against Defendant Cecilia Tolentino, dba D'Gourmet Filipino Cuisine. (Doc. 1.) The complaint alleges violations of 47 U.S.C. §§ 605 and 553, as well as causes of action for conversion and for violation of California Business and Professions Code section 17200, et. seq. The suit is based on Defendant's alleged unlawful interception, receipt, and exhibition of "Firepower": Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program (the "Program"), a fighting match that took place and was broadcast on November 14, 2009. (Doc. 1, ¶ 9.) According to the complaint, Plaintiff had the proprietary rights to distribute the Program. (Id.)
On January 26, 2011, Plaintiff filed an executed summons indicating that Defendant Cecilia Tolentino was personally served with process on January 14, 2011. (Doc. 5.) A response to the complaint was due on February 4, 2011, but Defendant failed to file any response. On February 9, 2011, pursuant to Plaintiff's request, the Clerk entered Defendant's default. (Doc. 9.) On March 9, 2011, Plaintiff filed a motion for default judgment against Defendant. (Doc. 11.) On March 30, 2011, Defendant filed a motion to set aside the entry of default against her. (Doc. 13.) These motions are currently pending before the Court.
A. Defendant's Motion to Set Aside the Entry of Default
"The court may set aside an entry of default for good cause . . . ." Fed. R. Civ. P. 55(c). To determine whether good cause exists, the court must consider whether: (1) the defaulting party engaged in culpable conduct that led to the default; (2) the defaulting party has no meritorious defense; or (3) whether reopening the default would prejudice the other party. United States v. Signed Pers. Check No. 730 of Yubran S. Mesle ("Mesle"), 615 F.3d 1085, 1091 (9th Cir. 2010) (citing Franchise Holding II, LLC v. Huntington Rests. Group, Inc., 375 F.3d 922, 925-26 (9th Cir. 2004)). This is the same standard used for determining whether a default judgment should be set aside under Rule 60(b). Id. The good cause test is disjunctive, "such that a finding that any one of these factors is true is sufficient reason for the district court to refuse to set aside the default." Id.
In considering these good cause factors, the Ninth Circuit instructs that the court is to be guided by the underlying policy concern that "'judgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits.'"Id. (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)).
a. Defendant's Conduct is Not ...