The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Defendant is a prisoner proceeding in this action pro se. This proceeding was referred to this court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1).
Presently pending before the court are numerous filings, listed here in order of filing: Brewer's request for judicial notice, filed January 20, 2012; the government's motion for default judgment or alternatively for summary judgment, filed January 27, 2012; Brewer's motion to set aside entry of default, filed January 27, 2012; the government's motion to strike the answer and counterclaim, filed January 31, 2012; Brewer's "notice of verified answer and answer to plaintiff's motion to strike," filed February 2, 2012; the government's opposition to Brewer's motion to set aside default, filed February 8, 2012; Brewer's Freedom of Information Act request, filed February 10, 2012; Brewer's objection to assignment of the undersigned magistrate judge and opposition to motion to strike, filed February 14, 2012; Brewer's "verified reply to plaintiff's reply in support United States of America's motion for default judgment or, alternatively, for summary judgment filed 2/21/12," filed February 28, 2012; Brewer's request for judicial notice, filed April 16, 2012; and Brewer's "amended verified reply to plaintiff's reply in support of United States of America's motion for default judgment or, alternatively, for summary judgment filed 2/21/12," filed May 14, 2012. Each filing will be addressed as necessary.
BREWER'S OBJECTION TO THE MAGISTRATE JUDGE AS ASSIGNED JUDGE
Brewer has filed an objection to the assignment of this case to the undersigned, claiming that magistrate judges are not Article III judges and have no authority to conduct trials by jury. Brewer seems to acknowledge that district judges may refer pretrial matters to magistrate judges without the consent of the parties.
Brewer is informed that pursuant to E.D. Local Rule 302(21), the magistrate judge is required to manage pro se cases. This authority is granted by 28 U.S.C. § 636(b)(1). Therefore, the fact that Brewer has not consented to a magistrate judge is of no consequence, as the district court reviews all recommended dispositions by magistrate judges. Furthermore, the magistrate judge, absent consent, has no authority to conduct jury trials or other dispositive matters, which seems to be Brewer's primary objection. E.D.L.R. 302(21). Brewer's objection to a magistrate judge acting as an assigned judge is therefore denied.
MOTION TO SET ASIDE ENTRY OF DEFAULT
Federal Rule of Civil Procedure, 55(c) provides that a default may be set aside for "good cause." "Good cause" requires consideration of the following factors: (1) whether the defaulting party engaged in culpable conduct that led to the default; (2) whether there is a meritorious defense; or (3) whether setting aside default will prejudice the other party. 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)); Mendoza v. Wight Vineyard Management, 783 F.2d 941, 945 (9th Cir. 1986). See also TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001).
These factors are disjunctive, and the court may deny the motion if any of the three factors favors the defaulting party. Franchise Holding II, LLC., 375 F.3d at 926 (quoting American Ass'n of Naturopathic Physicians, 227 F.3d at 1108). The party seeking to set aside the entry of default has the burden to show that these factors favor such relief. Franchise Holding II, 375 F.3d at 926. The Ninth Circuit Court of Appeals has recently stated that the rules in this regard are solicitous towards movants, especially those whose actions leading to the default were taken without the benefit of legal representation. United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010).
1. Good Cause The court's discretion to determine whether good cause has been shown is particularly generous where the motion seeks to set aside an entry of default, rather than a default judgment. Brady v. United States, 211 F.3d 499, 504 (9th Cir. 2000); Mendoza, 783 F.2d at 945. "[J]udgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits." Mesle, 615 F.3d at1091 (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir.1984)).
Leniency in setting aside a default is especially appropriate if the attorney failed the client. Community Dental Services v. Tani, 282 F.3d 1164, 1168-69 (9th Cir. 2002).
"[S]imple carelessness is not sufficient to treat a negligent failure to reply as inexcusable, at least without a demonstration that other equitable factors, such as prejudice, weigh heavily in favor of denial of the motion to set aside a default." Mesle, 615 F.3d at 1092.
Finally, although there is no express requirement of timeliness in Rule 55(c), the fact that the defaulted party acted quickly to cure the default and seek relief is a strong reason for the court to exercise its discretion to set aside the default. 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2694 (1990). Put simply, if ...