The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER DENYING MOTION TO SET ASIDE ENTRY OF DEFAULT*fn1
Erlinda Pickle (Mrs. Pickle), in her capacity as appointed Probate Conservator of Thomas A. Pickle (Mr. Pickle), moves to set aside the Clerk's entry of default against Mr. Pickle. Mrs. Pickle argues that the recent Ninth Circuit decision in United States v. Signed Personal Check No. 730 of Yurban S. Mesle ("Mesle"), 615 F.3d 1085 (9th Cir. 2010), warrants a finding that "good cause" exists for vacating the entry of default against Mr. Pickle. The government opposes the motion, arguing that notwithstanding the Mesle decision, Mrs. Pickle has not shown the existence of "good cause" justifying issuance of an order vacating the Clerk's entry of default.
Federal Rule of Civil Procedure 55(c) prescribes: "The court may set aside an entry of default for good cause . . . ." Three factors are considered when determining whether good cause exists justifying issuance of an order vacating the Clerk's entry of default: (1) whether the party seeking to set aside the entry of default engaged in culpable conduct that led to the default; (2) whether the party seeking to set aside the entry of default had no meritorious defense; or (3) whether reopening the entry of default would prejudice the other party. Mesle, 615 F.3d at 1091. "The standard . . . 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 [entry of] default." Mesle, 615 F.3d at 1091 (citing Franchise Holding II, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922, 926 (9th Cir. 2004)). "[T]he party seeking to [set aside the entry of default] bears the burden of demonstrating that these factors favor [setting aside the entry of default]." TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001).
This is an in rem action brought by the United States against Real Property located at 1 Mile Up Hennessey Road, Burnt Ranch, CA. (Compl. ¶ 3.) The government alleges in its Complaint that "[t]he United States seeks to forfeit the defendant real property, including any right, title and interest in the whole of any lot or tract of land and any appurtenances or improvement thereon, on the grounds that said real property was used or intended to be used, in any manner or part, to commit, or to facilitate the commission of a violation of 21 U.S.C. § 841 et seq., . . . and is therefore subject to forfeiture to the United States pursuant to 21 U.S.C. § 881(a)(7)." Id. ¶ 4.
Mr. Pickle, who is the recorded owner of the defendant real property, was personally served with the forfeiture complaint on July 30, 2009. (Notice of Process Receipt and Return, ECF No. 8.) Mr. Pickle disappeared sometime after being personally served and his whereabouts are unknown. (Mot. 3:17-18.)
Mr. Pickle's attorney, on Mr. Pickle's behalf, responded to the government's complaint by filing a claim of interest in the property and an answer to the government's complaint. (ECF Nos. 9, 14.) Mr. Pickle's attorney also verified the claim and answer on behalf of Mr. Pickle. Id. The government filed a motion to strike the claim and answer of Thomas A. Pickle on the ground that Mr. Pickle failed to personally verify his claim and answer, which was granted on February 3, 2010. (ECF No. 21.) On March 2, 2010, the Clerk entered default against Mr. Pickle in this action. (ECF No. 23.) On February 25, 2010, the Superior Court of California, County of Trinity ("Superior Court") appointed Mrs. Pickle as Probate Conservator for Mr. Pickle. (Mot. Ex. A.) Further, on July 12, 2010, Mrs. Pickle received authorization from the Superior Court to proceed with acting on Mr. Pickle's behalf in this case in her capacity as Probate Conservator. (Mot. Ex. C.) On July 20, 2010, Mrs. Pickle filed a claim and answer on behalf of Mr. Pickle. (See Claim in Civil Forfeiture Case, ECF No. 31; Ans. to Compl., ECF No. 32.)
Mrs. Pickle argues that Mr. Pickle has two meritorious defenses against the present forfeiture action that justify setting aside the Clerk's entry of default: first, that probable cause did not exist for the search of the defendant property and therefore the search violated of the Fourth Amendment; and second, that requiring forfeiture of the entire property constitutes an excessive fine proscribed by the Eighth Amendment. The government responds that Mrs. Pickle failed to present specific facts demonstrating a defense in this case.
"A defendant seeking to vacate [entry of] default . . . must present specific facts that would constitute a defense." TCI Group, 244 F.3d at 700. "[C]onclusory statements that a dispute exist[s]" or "mere general denials without facts to support [the defense are] not enough to justify vacating a default or default judgment." Franchise Holdings II, 375 F.3d at 926 (quotation omitted); see also Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970)(stating "[i]n an attempt to determine the meritorious nature of a defense, the trial court must have before it more than mere allegations that a defense exists").
A. Lack of Probable Cause in Violation of the Fourth Amendment
Mrs. Pickle supports the Fourth Amendment defense with the ...