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Sergei Sarytchev v. Vixtor Korolev

April 11, 2013

SERGEI SARYTCHEV, PLAINTIFF,
v.
VIXTOR KOROLEV, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Nandor J. Vadas United States Magistrate Judge

ORDER GRANTING MOTION TO SET ASIDE DEFAULT AND SETTING INITIAL CASE MANAGEMENT CONFERENCE Re: Dkt. No. 58

INTRODUCTION

Defendants Vixtor Korolev, Larisa Rumiantseva, Classic-Partner, LLC, Dmitri Gorev and Sergei Liliev have moved to set aside the default entered against them. See Doc. No. 58. For the 16 reasons set forth below, the court grants Defendants' motion. 17

DISCUSSION

I.BACKGROUND

Plaintiff filed a copyright infringement complaint against Defendants, alleging that they 20 had made unauthorized use of one of his songs. Doc. No. 1. In July 2012, after Defendants failed 21 to respond to the operative complaint, the court entered their default. Doc. Nos. 14 & 15. Three 22 of the defendants subsequently filed an answer, which the district court struck because default had 23 been entered against them, cutting off their right to appear in the action. Doc. No. 33. The district 24 court allowed defendants to file a motion to set aside default and cautioned that if they did not file 25 that motion by October 31, 2012, Plaintiff may file a motion for default judgment. Id. When none 26 of the defendants moved to set aside default by October 31, 2012, Plaintiff moved for default 27 judgment. Doc. No. 41. On November 19, 2012, Defendants filed another answer. Doc. No. 46. 28

Defendants did not timely oppose the motion for default judgment. See Doc. Nos. 48 & 49 (opposition filed ten days late). The district court denied Plaintiff's motion for default judgment, 2 struck Defendants' answers, and once more ordered Defendants to file a motion to set aside entry 3 of default against them: 4

While defendants have shown an intent to defend the action, they must follow the proper procedures in order to proceed. First, defendants must move, under Rule 55(c), to set aside the default entered against them. Next, assuming the default is set aside, defendants may re-file their answer. Defendants must move to set aside the defaults by January 25, 2013. If defendants file anything other than a motion to set aside the default, those filings will be stricken. And if defendants miss this second deadline for a motion to set aside the default, they risk default judgment being entered against them.

Doc. No. 50. 10

Defendants then moved to set aside the non-existing default judgment. Doc. No. 51. With 11 the parties' consent, the district court reassigned the case to the undersigned. Doc. No. 55. The undersigned denied Defendants' motion, without prejudice. Doc. No. 57. Specifically, the undersigned ordered that "[n]o later than March 5, 2013, Defendants shall file a motion to set 14 aside entry of default. They shall analyze the relevant issues using the appropriate (federal) rules 15 and caselaw and support their analysis with declarations and/or other competent evidence to 16 establish that there is good cause to set aside the default." Id. 17

On March 4, 2013, Defendants filed their motion to set aside entry of default. Doc. No. 58. Plaintiff opposed the motion, arguing the motion should be denied, or, in the alternative, that 19 it should only be granted on the condition that Defendants pay the attorneys' fees that Plaintiff 20 was forced to incur as a result of Defendants' conduct. Doc. No. 60. Defendants filed a belated 21 reply. Doc. No. 62. The motion came on for hearing on April 9, 2013. 22

II. ANALYSIS

A.Standard for setting aside entry of default. 24 Entry of default may be set aside for good cause under Federal Rule of Civil Procedure 55(c). See United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 26 1091 (9th Cir. 2010) ("Mesle"); see also TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695 27 (9th Cir. 2001).

To determine whether "good cause" exists, a court considers three factors: (1) whether reopening the default would prejudice the plaintiff; (2) whether the defendant's culpable conduct 2 led to the default; and (3) whether the defendant had a meritorious defense. Mesle, 615 F.3d at 3

1091. While these factors are "disjunctive" and a court may deny relief if any of the three factors 4 applies, the court's decision is discretionary. Brandt v. ...


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