Pringle v. Cardall ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 PAMELA DENISE PRINGLE, No. 2:18-cv-2035 WBS KJN 13 Plaintiff, 14 v. ORDER RE: CONDITIONAL SETTING ASIDE OF ENTRY OF DEFAULT 15 BRENT CARDALL, COUNTY OF YOLO, YOLO COUNTY PROBATION 16 DEPARTMENT, ANTHONY PENNELLA, SANDY JONES, AMANDA GENTRY, NOEL 17 BARLOW-HUST, JUDY MESICK, CINDY McDONALD, MARK ALAN KUBINSKI, 18 ELISA SUE MAGNUSON, JOHN DOES 1- 20, and JANE DOES 1-20, 19 inclusive, 20 Defendants. 21 22 ----oo0oo---- 23 Defendant Anthony Pennella has filed an opposed motion 24 to set aside the entry of default entered against him on November 25 27, 2018. (Mot. Set Aside Default (Docket No. 105).) 26 I. Factual and Procedural Background 27 Plaintiff Pamela Denise Pringle filed her First Amended 28 Complaint on August 3, 2018, alleging violations by multiple 1 California and Idaho defendants of 42 U.S.C. § 1983, 42 U.S.C. § 2 1985, violations of civil rights under the First, Fifth, Eighth, 3 and Fourteenth Amendments to the U.S. Constitution, and 4 California Penal Code § 136.1(a), among other causes of action. 5 (See First Am. Compl. (“FAC” or “complaint”) (Docket No. 7).) 6 On October 23, 2018, Roger Gold, the litigation 7 coordinator at the Headquarters for the California Department of 8 Corrections and Rehabilitation (“CDCR”), accepted service of 9 plaintiff’s FAC and summons on behalf of defendant. (See Decl. 10 of Kelly Heffington in Support of Mot. Set Aside Default ¶ 2 11 (“Heffington Decl.”) (Docket No. 105-3).) 12 Mr. Gold emailed plaintiff’s complaint to the CDCR 13 Office of Legal Affairs, copying defendant on the email. (See 14 id.) Defendant also signed a request for representation by the 15 California Office of the Attorney General and returned it to Mr. 16 Gold for processing. (See Decl. of Anthony Pennella in Support 17 of Mot. Set Aside Default ¶¶ 2–3 (“Pennella Decl.”) (Docket No. 18 105-3).) CDCR’s Office of Legal Affairs never completed either 19 Mr. Gold or defendant’s request. (See Heffington Decl. at ¶¶ 2- 20 4.) Because defendant believed that his case would be handled by 21 the Office of the Attorney General and that he need not do 22 anything further until contacted by a member of that office, 23 defendant did not respond to plaintiff’s complaint. (See Appl. 24 for Entry of Default against Def. Pennella at 2 (Docket No. 23).) 25 Plaintiff requested an entry of default against 26 defendant on November 26, 2018, though she did not serve 27 defendant with a copy of her request. (See Clerk’s Entry of 28 Default as to Anthony Pennella (“Entry of Default”) (Docket No. 1 24); Def.’s Reply (Docket No. 108).) The Clerk entered 2 defendant’s default the next day. (See Entry of Default.) Since 3 November 25, 2019, this case has been stayed pending plaintiff’s 4 appeal of an order granting the Idaho defendants’ motion to 5 dismiss for lack of personal jurisdiction. (See Order Granting 6 Mot. Dismiss (Docket No. 85); Order re: Mot. for Certification of 7 Ruling as Final J.) (Docket No. 98).) As a result of the stay, 8 no discovery has been conducted in the case thus far. (See 9 Def.’s Mem. Supp. Mot. Set Aside Default at 8 (“Def.’s Mem.”) 10 (Docket No. 105-1).) 11 II. Discussion 12 A. Motion to Set Aside Default 13 The Ninth Circuit has emphasized that default judgments 14 are “appropriate only in extreme circumstances; a case should, 15 whenever possible be decided on the merits.” TCI Grp. Life Ins. 16 Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001), overruled on 17 other grounds by Egelhogg v. Egelhoff ex rel. Breiner, 532 U.S. 18 141 (2001)(citing Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 19 1984) (per curiam)). A district court must find that there is 20 “good cause” to set aside an entry of default. Fed. R. Civ. P. 21 55(c). Three factors govern the question of whether good cause 22 exists: “1) whether the defendant’s culpable conduct led to the 23 default; 2) whether the defendant has a meritorious defense; and 24 3) whether reopening the default judgment would prejudice the 25 plaintiff.” TCI, 244 F.3d at 696. The moving party bears the 26 burden of demonstrating that these factors favor setting aside 27 the default. See id. 28 1. Culpable Conduct 1 The defendant’s failure to respond to the plaintiff’s 2 complaint in this case was not culpable. “The usual articulation 3 of the governing standard, oft repeated in our cases, is that ‘a 4 defendant’s conduct is culpable if he has received actual or 5 constructive notice of the filing of the action and intentionally 6 failed to answer.’” Id. (quoting Alana Neuman Prods., Inc. v. 7 Albright, 862 F.2d 1388, 1392 (9th Cir. 1988)). In TCI, the 8 Ninth Circuit made clear that “intentional” conduct for the 9 purposes of the culpability standard may encompass a neglectful 10 failure to respond, but only when the defendant’s neglect is not 11 “excusable.” Id. In other words, the defendant must be able to 12 offer a credible, good-faith explanation for his failure to 13 respond. See id. at 697. “[W]hen there is no explanation of the 14 default inconsistent with a devious, deliberate, willful, or bad 15 faith failure to respond,” the defendant’s conduct will typically 16 be found to be culpable. Id. at 698 (citing Kingvision Pay-Per- 17 View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999) 18 (holding that defendants’ conduct was culpable because they 19 ignored the summons and complaint despite “frequent chats” with 20 their lawyers during the period for answer and then filed 21 affidavits falsely claiming they had not been served)). 22 Here, defendant has offered a credible and good-faith 23 explanation for his failure to respond. Defendant submitted a 24 request for representation to CDCR’s litigation coordinator 25 promptly after being served with the plaintiff’s summons and FAC. 26 (See Decl. of Anthony Pennella in Support of Mot. Set Aside 27 Default ¶¶ 2–3 (“Pennella Decl.”) (Docket No. 105-3).) Defendant 28 maintains that he did not learn that a default had been entered 1 against him in this case until July 2020. (See Def.’s Mem. at 2 4.) It appears that CDCR’s Office of Legal Affairs failed to 3 request that the Office of the Attorney General represent the 4 defendant in this case, despite receiving a request to do so from 5 CDCR’s litigation coordinator and the defendant’s completed 6 request for representation. (See Def.’s Mem. at 4-5; Heffington 7 Decl. at ¶ 3.) Although defendant arguably should have followed 8 up with CDCR or the Office of the Attorney General to ensure that 9 the request for representation had gone through, his failure to 10 do so was excusable because it was based on a reasonable and 11 good-faith belief that the Office of Legal Affairs would secure 12 representation for him and that his attorney would inform him of 13 any case developments requiring his attention. See TCI, 244 F.3d 14 at 697. Defendant also never received notice from plaintiff that 15 she had requested entry of his default. (See Def.’s Reply at 4.) 16 Any neglect on the part of CDCR and defendant’s counsel 17 is also excusable. This matter came back to the attention of 18 CDCR’s Office of Legal Affairs on or around June 4, 2020 when the 19 Office of the Attorney General informed CDCR that the Office of 20 Legal Affairs would need to retain outside counsel for defendant. 21 (See Heffington Decl. at ¶ 5.) Defendant’s supporting affidavits 22 do not explain why the Office of the Attorney General suddenly 23 informed CDCR’s Office of Legal affairs that defendant required 24 outside counsel in June 2020, but as soon the Office of Legal 25 Affairs realized its mistake, it promptly secured outside 26 representation for defendant and defendant’s counsel filed this 27 Motion to Set Aside Default. (See id.; Decl. of Janine Jeffery 28 in Support of Mot. Set Aside Default ¶ 2 (“Jeffery Decl.”) 1 (Docket No. 105-3).) 2 Plaintiff argues that defendant’s counsel unreasonably 3 added to the delay by waiting until August to bring this motion, 4 instead of filing as soon as she was retained in June. (See 5 Pltf.’s Opp’n Def. Mot. Set Aside Entry of Default at 4-5 (“Pltf. 6 Opp’n”) (Docket No. 106).) But defense counsel’s decision to 7 delay from June until August was based on knowledge that the case 8 was stayed and a good-faith belief that settlement was 9 “imminent,” based on the representations of other defense counsel 10 in the case. (See Jeffery Decl. at ¶ 3.) These actions do not 11 evidence any devious, deliberate, willful, or bad-faith 12 motivations on the part of defendant or his counsel. See TCI, 13 244 F.3d at 696. Accordingly, defendant’s conduct was not 14 culpable. 15 2. Meritorious Defenses 16 The defendant has also shown that he has a meritorious 17 defense. To satisfy the meritorious defense requirement, the 18 defendant must go beyond general denial of the plaintiff’s claims 19 and present specific facts that constitute a defense. See id. 20 (citing In re Stone, 588 F.2d 1316, 1319 n.2 (10th Cir. 1978) 21 (explaining that the movant need only demonstrate facts or law 22 showing the trial court that “a sufficient defense is 23 assertible”)). 24 Here, plaintiff claims that defendant conspired with 25 the Idaho defendants to violate her Constitutional rights under 26 the Fifth and Fourteenth Amendments. (See Pltf. Opp’n at 8.) 27 Specifically, plaintiff alleges that defendant failed to process 28 her Interstate Compact Application when he requested that he be 1 removed from an email chain concerning the application. (See id.; 2 FAC at ¶¶ 77, 103.) This conduct allegedly deprived plaintiff of 3 her Constitutional right to due process of law and equal 4 protection under the law because it violated clearly established 5 Interstate Commission for Adult Offender Supervision (“ICAOS”) 6 Rules and administrative requirements. (See Pltf. Opp’n at 8). 7 Plaintiff also claims that defendant violated the Fifth and 8 Fourteenth Amendments by conspiring with correctional officers in 9 Idaho to bring false parole violation proceedings against her, so 10 that Idaho correctional officers could extradite her back to 11 Idaho in retaliation for lawsuits she had filed against them. 12 (See id.) 13 Not only does defendant generally deny plaintiff’s 14 claims, but he provides specific facts that constitute a defense. 15 Defendant explains that he declined to be involved in the 16 processing of plaintiff’s application for transfer because she 17 refused to sign it and claimed that the application had been 18 fraudulently created by Idaho correctional officers. (See 19 Pennella Decl. at ¶ 8.) Defendant denies conspiring with anyone 20 in Idaho to create a false parole allegation against her, and, in 21 fact, attests that he has never even spoken to anyone in Idaho 22 regarding plaintiff. (Id. at ¶ 9.) Defendant also asserts that 23 plaintiff’s parole violation was based on legitimate information 24 that she had absconded and, in any event, he and Idaho 25 correctional officers would have had no incentive to create a 26 false parole violation because Idaho maintained the right to 27 extradite plaintiff at any time for any reason. (Id. at ¶¶ 9- 28 10.) 1 If defendant’s representations are true, his conduct 2 would not violate ICAOS rules or plaintiff’s rights under the 3 U.S. Constitution. For the purposes of a motion to set aside 4 default, the court is not tasked with evaluating the veracity of 5 the defendant’s claims--whether defendant’s claims are true will 6 properly be the subject of later litigation. See TCI, 244 F.3d 7 at 700. It is enough that the defendant allege facts showing 8 that a sufficient defense is ascertainable. Because defendant 9 has done so here, the meritorious defense requirement is also 10 satisfied. 11 3. Prejudice to Plaintiff 12 Plaintiff will not be prejudiced by setting 13 aside the entry of default against defendant. “To be 14 prejudicial, the setting aside of a judgment must result in 15 greater harm than simply delaying the resolution of the case.” 16 TCI, 244 F.3d at 701. Rather, the standard is whether the 17 plaintiff’s ability to “pursue [her] claim will be hindered.” 18 Id. “[M]erely being forced to litigate on the merits cannot be 19 considered prejudicial for purposes of lifting a default 20 judgment.” Id. 21 This case has been stayed since November 25, 2019, 22 pending plaintiff’s Ninth Circuit appeal. (See Docket No. 98.) 23 Plaintiff submitted her opening brief to the Ninth Circuit on 24 July 28, 2020, (see Def. Mem. at 8), and no discovery has been 25 conducted in this case and the case has not progressed beyond the 26 pleading stage. Under these circumstances, plaintiff’s ability 27 to pursue her claims will not be hindered by setting aside 28 defendant’s default. See TCI, 244 F.3d at 701. 1 Because every relevant factor favors setting aside the 2 entry of default against defendant, the court will set aside the 3 defendant’s default. 4 B. Payment of Attorney’s Fees and Costs 5 District courts may condition the setting aside of an 6 entry of default on the payment of sanctions. See Nillson, 7 Robbins, Dalgarn, Berliner, Carson & Wurst v. La. Hydrolec., 854 8 F.2d 1538, 1546–47 (9th Cir. 1988) (“[I]t is appropriate to 9 condition setting aside a default upon the payment of a 10 sanction.”). “By conditioning the setting aside of a default, 11 any prejudice suffered by the non-defaulting party as a result of 12 the default and the subsequent reopening of the litigation can be 13 rectified.” Id. at 1546; see also Citadel Ltd. V. Dileo, No. LA 14 CV-10-06304 JAK, JCGx, 2011 WL 13217385 at *2 (C.D. Cal. Aug. 11, 15 2011) (conditioning relief from an entry of default on defaulting 16 defendants’ paying plaintiff “reasonable fees and expenses 17 associated with . . . preparing the motion for a default 18 judgment”). 19 Here, it was CDCR’s Office of Legal Affairs’ neglect of 20 the defendant’s request to obtain counsel for him in a timely 21 fashion which caused the default to be entered. (See Heffington 22 Decl. at ¶ 3.) The defendant may have compounded this mistake by 23 failing to follow up and determine what had become of his 24 request, despite being sued in both his individual and official 25 capacities. (See Def. Mem. at 5.) Though the conduct of CDCR 26 and defendant was excusable, the payment of plaintiff’s 27 attorney’s fees associated with the preparation of a motion for 28 default judgment serves as a proper sanction and should ee nee en ne ne EO OE ROE EES eee 1 compensate plaintiff for any prejudice she has suffered, 2 including the time she has had to spend responding to this 3 motion. It should also motivate defendants and CDCR to respond 4 to legal summonses and cases in a timely and efficient manner in 5 the future. 6 IT IS THEREFORE ORDERED that defendant Anthony 7 Pennella’s motion to set aside default (Docket No. 105) be, and 8 the same hereby is, GRANTED, conditioned upon his payment of 9 | plaintiff’s attorney fees and costs associated with the 10 preparation of plaintiff’s opposition to this motion. Within 11 fourteen (14) days of this order, plaintiff shall submit to the 12 court an itemized fee and cost request accompanied by all 13 relevant records and receipts. The defendant may file any 14 response to the itemized request within seven (7) days. 15 Dated: September 3, 2020 Lg ak. 16 WILLIAMB.SHUBB 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 10