United States District Court, N.D. California
January 6, 2015
PETE LIVINGSTON, Plaintiff,
ART.COM, INC., et al., Defendants.
ORDER SETTING BRIEFING SCHEDULE ON MOTION TO SET ASIDE ENTRY OF DEFAULT
Re: Dkt. No. 95
JACQUELINE SCOTT CORLEY, Magistrate Judge.
Plaintiff Pete Livingston contends that Defendants Jack Allen ("Allen") and Dream City Photo Lab ("Dream City") infringed his copyright in a photograph of Marilyn Monroe. Presently before the Court is Defendant's motion for default judgment against Allen and Dream City. The Clerk of Court entered default against Allen and Dream City on November 14, 2013, after the defaulting defendants failed to appear or otherwise defend themselves in this matter since its commencement in August of 2013. (Dkt. No. 20.) Plaintiff filed a motion for default judgment on November 19, 2014. (Dkt. No. 87.) The Court ordered Plaintiff to submit supplemental briefing on the availability of statutory damages on December 2, 2014 (Dkt. No. 92), which Plaintiff filed on December 16, 2014. (Dkt. Nos. 93-94.)
On December 29, 2014-over one year after the Clerk's office first entered default and over one month after Plaintiff filed a motion for default judgment-Allen, proceeding pro per, filed an opposition to Plaintiff's motion. (Dkt. No. 95.) In the opposition, Allen notes that he seeks to set aside the Clerk's entry of default and asks the Court to deny the motion for default judgment. ( Id. ) Allen contends that his failure to appear was "was based on misleading information" from Plaintiff's counsel, and he opposes entry of default judgment based on the lack of substantive evidence of infringement; the fact that he never received a cease and desist letter from Plaintiff; and on the grounds that his company, Dream City, is on the verge of bankruptcy and has no assets. ( Id. at 1-2.)
Notably, Allen did not challenge the Clerk's initial entry of default, nor did he timely oppose Plaintiff's motion for default judgment. However, courts have considered late-filed oppositions to motions for default judgment. See, e.g., Wahoo Int'l, Inc. v. Phix Doctor, Inc., No. 13cv1395-GPC(BLM), 2014 WL 6810663, at *2 n.1 (S.D. Cal. Dec. 2, 2014) (considering the defendant's opposition to the plaintiff's motion for default judgment that was filed 10 days late where plaintiff filed a reply to that opposition). What is more, courts may treat a defendant's opposition to a motion for default judgment as a motion to set aside entry of default despite the absence of a formal motion. See Davies v. Guinn Res. Co., 978 F.2d 714 (9th Cir. 1992) (citing 6 James W. Moore, Moore's Fed. Practice ¶ 55.101 (2d ed. 1985), and Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1988)); Mendoza v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1988) (noting that the court's discretion to set aside entry of default is "especially broad" (citation omitted)); see, e.g., U.S. v. Approximately $43, 029, No. 06-7421 EDL, 2008 WL 5071106, at *1 (N.D. Cal. Dec. 1, 2008).
When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default. Fed.R.Civ.P. 55(a). Under Rule 55, an entry of default can only be set aside upon a showing of good cause. In determining whether to set aside default for good cause under Rule 55(c), the court must consider three factors: (1) whether the party seeking to set aside the default engaged in culpable conduct that led to the default; (2) whether it had no meritorious defense; or (3) whether setting aside the default would prejudice the other party. United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010). 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 default." Id. The Ninth Circuit instructs that "judgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits." Id . Here, Allen's two-page opposition appears to touch on some of the Mesle factors in a conclusory manner without including relevant facts in a declaration. With respect to culpable conduct, Allen contends that he immediately contacted Plaintiff's counsel when he was served with the complaint and his failure to appear was a mistake based on that attorney's "misleading information[.]" (Dkt. No. 95 at 2.) Regarding meritorious defenses, Allen contends that he never included the photograph at issue in his collection. ( Id. ) Allen's opposition does not discuss the third Mesle factor-the possibility of prejudice to Plaintiff.
Given Allen's expressed intent to set aside the entry of default in this action, it is hereby ORDERED that Allen shall file by January 20, 2015, a formal motion to set aside the Clerk's entry of default pursuant to Federal Rule of Civil Procedure 55(c). Any such motion must conform to the Local Rules of the Court, which require, among other things, that any factual contentions be supported by an affidavit or declaration. See Civ. L.R. 7-5. Further, Defendant Dream City is advised that a corporation cannot appear pro per. Civ. L.R. 3-9(b). Accordingly, should Defendant Dream City wish to join Allen's motion to set aside the Clerk's entry of default, Dream City must retain counsel. In other words, Dream City does not join the motion to set aside default merely because Allen owns the business.
IT IS SO ORDERED.