Presently before the court is pro se defendant Andrew Rockwell's (hereinafter "Rockwell") motion to set aside default. (Doc. # 59). Plaintiffs Hakkasan LV, LLC and Hakkasan Limited (hereinafter "plaintiffs") filed a response. (Doc. # 61). Rockwell did not file a reply, and the deadline to reply has now passed.
This case arises from defendants Andrew Rockwell and VIP UNLTD, LLC's (hereinafter "defendants") violations of plaintiffs intellectual property rights, including but not limited to infringement of plaintiffs "Hakkasan" trademark. On October 30, 2013, plaintiffs filed their complaint. (Doc. # 1). On November 13, 2013, a summons was returned executed as to defendants. (Doc. #11). On February 20, 2014, Rockwell filed an answer. (Doc. #24).
On April 1, 2014, plaintiffs filed a motion for entry of clerk's default as to VIP, UNLTD, LLC ("VIP"). (Doc. #26). On April 2, 2014, the clerk entered default against VIP. (Doc. #28). On June 2, 2014, plaintiffs filed a motion for default judgment against VIP. (Doc. # 29). The court entered a default judgment against VIP on June 12, 2014. (Doc. # 32).
On August 5, 2014, plaintiffs filed a motion for partial summary judgment on the issue that Rockwell is personally liable for the judgment entered against VIP. (Doc. # 34). On August 25, 2014, plaintiffs filed a motion for summary judgment on each of their claims against Rockwell. (Doc. # 35). Both motions went unopposed, and plaintiffs filed notices of non-opposition. (Docs. #37, 38).
On October 14, 2014, the court ordered Rockwell to show cause as to why plaintiffs' motion for partial summary judgment on the issue of liability should not be granted. (Doc. # 39). The court instructed Rockwell to file any documentation in opposition to plaintiffs' motion within one week of the date of the order. (Doc. # 39). Rockwell again did not respond.
On October 27, 2014, the court granted plaintiffs motions for summary judgment. The court also issued a permanent injunction against Rockwell prohibiting him from using plaintiffs' trademarks. (Doc. #40). On the same date, the clerk entered judgment in favor of plaintiffs. (Doc. #41).
On December 10, 2014, plaintiffs filed motions for writs of execution against defendants. (Docs. # 55, 56). On December 11, 2014, the clerk entered writs of execution against VIP in the amount of $1, 518, 770.29, and against Rockwell in the amount of $1, 472, 181.79. (Docs. # 56, 57).
On December 30, 2014, Rockwell filed the instant motion to set aside default.
II. Legal Standard
Federal Rule of Civil Procedure 55(c) states, "The court may set aside an entry of default for good cause ...." To determine if good cause exists, the court considers: "(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 reopening the default judgment would prejudice the other party." United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (internal quotations omitted).
"[J]udgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits." Id. However, the above-mentioned factors set forth a disjunctive test, meaning that a motion to set aside default should be denied if any factor weighs against the defaulting party. Am. Ass 'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000).
While the court considers the same factors prior to vacating an entry of default as it would a default judgment, the test is less stringent when a default judgment has not been entered. See Hawaii Carpenters' ...