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G & G Closed Circuit Events, LLC v. Victoria Elizabeth Juarez

May 27, 2011

G & G CLOSED CIRCUIT EVENTS, LLC, PLAINTIFF,
v.
VICTORIA ELIZABETH JUAREZ, INDIVIDUALLY AND D/B/A VICTORIA'S MEXICAN FOOD, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

On February 2, 2011, this court issued findings and recommendations recommending that default judgment be granted. On February 15, 2011, defendant filed objections to those findings. Based on those objections, defendant was permitted to file a motion to set aside entry of default pursuant to Fed. R. Civ. P. 55(c). Having now reviewed defendant's motion and plaintiff's opposition, the court issues the following order.*fn1

BACKGROUND

On August 11, 2010, plaintiff filed the underlying complaint in this action against defendant Juarez, alleging defendant unlawfully intercepted and exhibited a broadcast of a program entitled, "Strikeforce: Carano v. Cyborg," ("Program"), in her establishment for commercial advantage without obtaining a sublicense from plaintiff for its use, in violation of the Communications Act, 47 U.S.C. § 605, the Cable Communications Policy Act, 47 U.S.C. § 553, and state law. The complaint alleges defendant exhibited the Program on August 15, 2009. The summons and complaint were served on defendant Juarez by substituted service on August 23, 2010. Because defendant Juarez failed to file an answer or otherwise appear in this action, the clerk entered default against defendant Juarez on September 27, 2010.

Request for entry of default and the instant motion for default judgment and supporting papers were served by mail on defendant Juarez at her last known address. Defendant Juarez did not file an opposition to the motion for entry of default judgment. The undersigned issued findings and recommendations on February 2, 2011, recommending that default judgment be granted in the amount of $40,000. Juarez filed objections on February 15, 2011, to which plaintiff filed a reply. Upon order to file a motion to set aside entry of default, and after receiving an extension of time in which to do so, Juarez filed her motion to set aside entry of default on April 25, 2011. Plaintiff has filed an opposition.

PRELIMINARY MATTERS

Local Rule 302(c)(19) expressly refers to the magistrate judges Rule 55(b)(2) motions for the entry of default judgment. However, there is no similar provision in the Local Rules automatically referring to magistrate judges Rule 55(c) motions for setting aside default. Accordingly, the motion will be determined on findings and recommendations.

DISCUSSION

Default against defendant Juarez was entered by the Clerk of the Court on September 27, 2010, pursuant to plaintiff's request. Juarez now moves to set aside default due to a torn rotator cuff and reliance on an attorney who apparently did not follow through with representation in this case. Plaintiff opposes the motion, claiming that Juarez has failed to show good cause to set aside entry of default.

LEGAL STANDARDS

Federal Rule of Civil Procedure, 55(c) provides that a default may be set aside for "good cause." "Good cause" is demonstrated by: 1) a sufficient excuse for not meeting the filing deadline; 2) a meritorious defense; and 3) that setting aside default will not unfairly prejudice the other party. Madsen v. Bumb, 419 F.2d 4, 6 (9th Cir. 1969); Mendoza v. Wight Vineyard Management, 783 F.2d 941, 945 (9th Cir. 1986). See Tri-Continental Leasing Corp. v. Zimmerman, 485 F. Supp. 495, 497 (N. D. Cal. 1980). See also TCI Group Life Ins. Plan v. Knoebler, 244 F.3d 691 (9th Cir. 2001).

These factors are disjunctive, and the court may vacate entry of default if any of the three factors is true. Franchise Holding II, LLC. v. Huntington Restaurants Group, Inc., 375 F.3d 922, 926 (9th Cir. 2004), quoting American Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000).

1. Good Cause

The court has discretion to determine whether good cause has been shown. See Madsen, 419 F.2d at 6; Curry v. Jensen, 523 F.2d 387, 388 (9th Cir. 1975). The court's discretion is particularly generous where the motion seeks to set aside an entry of default, rather than a default judgment. Mendoza, 783 F.2d at 945. Any doubt should be resolved in favor of setting aside the default in ...


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