United States District Court, E.D. California
ORDER
CRAIG
M. KELLISON, UNITED STATES MAGISTRATE JUDGE
Plaintiff,
a prisoner proceeding pro se, brings this civil rights action
pursuant to 42 U.S.C. § 1983. Pending before the court
are plaintiff's motion for default judgment (Doc. 20),
motion to enforce payment (Doc. 22), and motion for entry of
default (Doc. 24). Also pending are defendants' motion
for additional time (Doc. 28), and motions to set aside entry
of default (Docs. 29, 32).
I.
Background
Plaintiff
filed his civil rights complaint on November 25, 2014. A
waiver of service of summons was filed with this court, as to
five of the defendants, on February 16, 2017 (Doc. 14), and
as to defendant Agboli on March 2, 2017 (Doc. 15). The waiver
of service of summons was sent to the defendants on January
24, 2017. Defendants Agboli, Dayson, Bulawin, Yaroch, Lius
and Vallar each signed the waiver of service of summons. The
waiver of service of summons was not signed by defendant
Lynch. However, the summons was returned executed on May 26,
2017, indicating service on defendant Lynch was accomplished
on April 12, 2017 (Doc. 26).
Pursuant
to Federal Rule of Civil Procedure 4(d)(3), a defendant is
required to file an answer to the complaint within 60 days
after the date the waiver of service was sent. In this case,
that would have been on or before March 27, 2017. On March
22, 2017, plaintiff requested the entry of the
defendants' default. That request was denied as the 60
days in which the defendants had to respond to the complaint
had not yet expired. Plaintiff filed his second request for
entry of default on April 6, 2017. As no appearance had been
made by defendants Agboli, Dayson, Bulawin, Yaroch, Lius or
Vallar, the request for entry of default was granted, and the
Clerk of Court entered the default of defendants Agboli,
Dayson, Bulawin, Yaroch, Lius and Vallar on April 10, 2017.
On the
same day, the court received plaintiff's motion for
default judgment (Doc. 20), and a week later his motion to
enforce payment (Doc. 22). On May 18, 2017, plaintiff filed
his motion for entry of default as to defendant Lynch (Doc.
24). Those motions are currently pending.
On June
6, 2017, defendant Lynch filed a motion for additional time
to file a responsive pleading (Doc. 28). Defendants Dayson,
Bulawin, Yaroch, Lius and Vallar then filed a motion to set
aside the Clerk's entry of default (Doc. 29) on June 13,
2017. Defendant Agboli similarly filed a motion to set aside
the Clerk's entry of default (Doc. 32) on July 7, 2017.
Plaintiff filed his opposition to the motions to set aside
the defaults, but no opposition to defendant Lynch's
motion for additional time to respond.
II.
Motion to Set Aside Clerk's Entry of Default
Rule
55(c) of the Federal Rules of Civil Procedure provides for
relief from an entry of default for “good cause
shown.” An application under 55(c) to set aside a
default is addressed to the sound discretion of the trial
court. Savarese v. Edrick Transfer and Storage,
Inc., 513 F.2d 140, 146 (9th Cir. 1975). Because of the
preference for deciding cases on their merits whenever
possible, motions for relief from default entries should be
viewed liberally, see Falk v. Allen, 739 F.2d 461,
463 (9th Cir. 1984), resolving all doubts in favor of the
party seeking relief. See, e.g., Schwab
v. Bullock's Inc., 508 F.2d 353, 355 (9th Cir.
1974); Butner v. Neustadter, 324 F.2d 783 (9th Cir.
1963).
In
considering a motion to set aside a clerk's entry of
default pursuant to Rule 55(c), courts “uniformly
consider” the factors relevant to a motion to set aside
a default judgment, pursuant to Fed.R.Civ.P. 60(b). 10 Wright
and Miller, Federal Practice and Procedure (“Wright
& Miller”), § 2694. In addition, the
requirements are more liberally interpreted in motions to set
aside the entry of default. Any of the reasons which are
sufficient to justify relief under Rule 60(b) will justify
relief under Rule 55(c). Id.
A
motion to set aside a default judgment under Rule 60(b) may
be denied if: (1) the plaintiff would be prejudiced by
granting it; (2) the defendant has no meritorious defense; or
(3) the defendant's culpable conduct led to the default.
Pena v. Seguros La Comercial, S.A., 770 F.2d 811
(9th Cir. 1985). Finally, although there is no express
requirement of timeliness in Rule 55(c), the fact that a
defaulted party acts quickly to cure the default and seek
relief is viewed as a strong reason for the court to exercise
its discretion to set aside the default. Wright & Miller,
§ 1698.
In this
case, the defendants contend they did not engage in culpable
conduct that caused the default, they have a meritorious
defense to this action, and plaintiff will not be prejudiced
by the default being set aside. The defendants, who are
current or former employees of the California Department of
State Hospitals (DSH), Vacaville, all acknowledge receiving
and signing the waiver of service. However, as explained in
the motion, DSH-Vacaville personnel are not employees of
California Department of Corrections and Rehabilitation
(CDCR), even though they are working at the same facility. As
a result, the Litigation Coordinator at California Medical
Facility (CMF) is not authorized to accept service from the
U.S. Marshal on behalf of DSH employees working at
DSH-Vacaville. Communication between the Litigation
Coordinator at CMF and the DSH-Vacaville Personnel Supervisor
established the Personnel Supervisor would accept service for
the current DSH employees (defendants Dayson, Bulawin,
Yaroch, Lius and Vallar). The service packets were received
by supervisors at DSH, signatures of the defendants were
obtained, and the documents were returned to the supervisor
and somehow were sent to the Marshal's office. However,
there was a breakdown in communication as to what to do with
the service documents, and the supervisors handling them were
not experienced in the handling of the service of legal
process on the employees. Further, the supervisors handling
the service documents did not inform the individual
defendants what was required in order for them to obtain
representation from the Office of the Attorney General (OAG),
nor did the supervisors properly notify the OAG of this
action and request representation.
In the
meantime, defendant Lynch, who is no longer a DSH employee,
had been served separately.[1] She apparently notified the
California Correctional Peace Officers Association and
informed them of this action, who in turn contacted DSH Legal
on her behalf on April 28, 2017. DSH Legal then inquired as
to the status of the case, and learned plaintiff had already
requested entry of default.
Similarly,
defendant Agboli acknowledges he received and signed his
waiver, but he did not understand the process and ...