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Peter Newsom, et al v. Bankers Alliance Inc.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


April 11, 2013

PETER NEWSOM, ET AL., PLAINTIFFS,
v.
BANKERS ALLIANCE INC., ET AL.,
DEFENDANTS.

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

ORDER RE MOTION TO SET ASIDE ENTRY OF DEFAULT Re: Dkt. No. 159

United States District Court Northern District of California

On February 28, 2013, the undersigned recommended that the district court deny Plaintiffs' motion for default judgment, and grant defendant Whiteside's motion to set aside entry 15 of default. See Doc. No. 148. On March 5, 2013, while the Report and Recommendation was 16 under submission before the district court, Plaintiffs finally served Whiteside with a summons and 17 a copy of the operative complaint.*fn1 Doc. No. 151. On March 21, 2013, the district court adopted 18 the undersigned's Report and Recommendation, denied Plaintiffs' motion for default judgment 19 and granted Whiteside's motion to set aside entry of default. Doc. No. 152. On March 26, 2013, 20 twenty-one days after Whiteside was served, when Whiteside did not respond to the complaint, 21

Plaintiffs moved to enter default against her. Doc. No. 155. Default was entered on March 28, 22 2013. Doc. No. 157. Whiteside moved to set aside the entry of default on April 4, 2013, arguing 23 that she was representing herself and believed she had additional time to respond to the complaint. 24

Doc. No. 159. The district court referred Whiteside's motion to set aside entry of default to the 25 undersigned. Doc. No. 160. 26

Plaintiffs' opposition to the motion to set aside entry of default, if they file one rather than stipulate to setting aside the default, is due on April 18, 2013. In their opposition, Plaintiffs should 3 address the following procedural issues:

1. When did Whiteside's time for responding to the complaint begin to run? Given that the district court did not vacate entry of default against Whiteside until March 21, 2013, could Whiteside technically respond to the complaint before then? Entry of default cuts off a party's right to appear or defend the action by any means except filing a motion to set aside the entry of default. See Newsom, 2013 U.S. Dist. LEXIS 7381 (N.D. Cal. Jan. 16, 2013) (striking Whiteside's motion to dismiss because default had been entered against her). Had Whiteside responded, would her response not have been struck, again?

2. Given (a) Whiteside's demonstrated intent to respond to the complaint and defend 13 herself in this action, (b) the Ninth Circuit's "oft stated commitment to deciding cases 14 on the merits whenever possible" (United States v. Signed Personal Check No. 730 of 15 Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010)), and (c) the fact that the three- 16 year delay in this action is attributable to Plaintiffs' failure to serve Whiteside until last 17 month, how is there not good cause to set aside entry of default in this case?

IT IS SO ORDERED.


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