(PS) Smith v. Brewer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEAN T. SMITH, No. 2:19-cv-1918 TLN DB 12 Plaintiff, 13 v. ORDER 14 DENNIS BREWER, an individual domiciled in New Jersey; WINNETT 15 PERICO, INC., a Colorado corporation, d.b.a. WINNETTORGANICS; 16 WINNETTORGANICS, a business entity of unknown type; WINNETTORGANICS 17 CATTLE COMPANY, INC., a Colorado corporation; WINNETT CATTLE 18 COMPANY, INC. a Colorado corporation, 19 Defendants. 20 21 On September 24, 2021, this matter came before the undersigned pursuant to Local Rule 22 302(c)(19) for hearing of plaintiff’s motion for default judgment. (ECF No. 26.) Attorneys 23 Geoffrey Evers and Richard Lambert appeared via Zoom on behalf of the plaintiff. Defendant 24 Dennis Brewer appeared via Zoom pro se. At the hearing defendant Brewer expressed a desire to 25 oppose default judgment. 26 Defendant Brewer is advised that defendant’s default was entered on October 29, 2019. 27 (ECF No. 10.) However, “Rule 55(c) [of the Federal Rules of Civil Procedure] provides that a 28 court may set aside a default for ‘good cause shown.’” Franchise Holding II, LLC. v. Huntington 1 Restaurants Group, Inc., 375 F.3d 922, 925 (9th Cir. 2004) (quoting Fed. R. Civ. P. 55(c)). “To 2 determine ‘good cause’, a court must ‘consider[ ] three factors: (1) whether [the party seeking to 3 set aside the default] engaged in culpable conduct that led to the default; (2) whether [it] had [no] 4 meritorious defense; or (3) whether reopening the default judgment would prejudice’ the other 5 party.” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th 6 Cir. 2010) (quoting Franchise Holding II, 375 F.3d at 925-26). 7 “Neglectful failure to answer as to which the defendant offers a credible, good faith 8 explanation negating any intention to take advantage of the opposing party, interfere with judicial 9 decision making, or otherwise manipulate the legal process is not ‘intentional[.]’” TCI Group 10 Life Ins. Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001), overruled on other grounds by 11 Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147-50 (2001). And “[a]ll that is necessary to 12 satisfy the ‘meritorious defense’ requirement is to allege sufficient facts that, if true, would 13 constitute a defense[.]” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 14 1085, 1094 (9th Cir. 2010) (quoting TCI, 244 F.3d at 700); see also In re Stone, 588 F.2d 1316, 15 1319 n.2 (10th Cir. 1978) (“the purpose of the requirement is to show the trial court that a 16 sufficient defense is assertible”). “To be prejudicial, the setting aside of a judgment must result in 17 greater harm than simply delaying resolution of the case. Rather, ‘the standard is whether 18 [plaintiff’s] ability to pursue his claim will be hindered.’” TCI, 244 F.3d at 701 (quoting Falk 19 739 F.2d at 463). Moreover, “[o]ur rules for determining when a default should be set aside are 20 solicitous towards movants, especially those whose actions leading to the default were taken 21 without the benefit of legal representation.” Mesle, 615 F.3d at 1089. 22 In light of defendant Brewer’s pro se appearance and stated intentions, defendant Brewer 23 will be granted time to file a motion seeking to set aside the entry of default.1 24 //// 25 //// 26 //// 27 28 1 Defendant Brewer’s motion shall be noticed for hearing in compliance with Local Rule 230. 1 Accordingly, IT IS HEREBY ORDERED that defendant Brewer is granted twenty-eight 2 || days from the date of this order to file a motion seeking to set aside the entry of default. 3 | Dated: September 27, 2021 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 DLB:6 23 DB\orders\orders.civil\smith1918.0ah.092421 24 25 26 27 | 2 The status and resolution of plaintiff’s motion for default judgment shall be determined after or in conjunction with the resolution of defendant Brewer’s motion to set aside entry of default, if 28 | any.