United States District Court, D. Nevada
before the court is plaintiff Compagnie Maritime
Marfret's (“Marfret”) motion for a default
judgment against defendants Natural Waters, Inc.
(“Natural”), Samuel J. Rowe, and Larry J. Lucas.
(ECF No. 15). Defendant Rowe filed a response (ECF No. 22),
and plaintiff filed a reply (ECF No. 25).
before the court is defendant Rowe's motion to set aside
the clerk's entry of default. (ECF No. 21). Plaintiff has
filed a response (ECF No. 26), and Rowe has filed a reply
(ECF No. 27).
filed its complaint on May 31, 2016, alleging three claims
against defendants: (1) fraudulent misrepresentation; (2)
conversion, and (3) replevin/claim and delivery. (ECF No. 1).
Summons to the defendants were returned executed on June 14,
2016; June 17, 2016; and August 29, 2016. (ECF Nos. 5-7, 12).
On September 28, 2016, plaintiff submitted its motion for
entry of clerk's default, and the clerk entered default
on September 30, 2016. (ECF Nos. 13, 14).
November 11, 2016, plaintiff submitted its motion for default
judgment. (ECF No. 15). Due to the court's granting of a
stipulation to extend time to respond to the motion for
default judgment, Rowe's response was timely. (ECF Nos.
subsequently filed motion to set aside the clerk's entry
of default argues that: (1) his cancer treatment “is a
primary reason Rowe did not actively participate earlier [in
the case]”; (2) the complaint does not specifically
identify Rowe's connection to the alleged fraud; and (3)
Rowe is more appropriately characterized as a fellow victim
of the alleged scheme. (ECF No. 21 at 2-4).
responds that Rowe's motion fails to offer “a
sufficient explanation as to why Rowe failed to timely answer
the complaint, despite the fact that he had actual notice of
its pendency for months prior to the entry of default.”
(ECF No. 26 at 2). Additionally, plaintiff requests that,
should the court grant the motion to set aside the entry of
default, Rowe pay “reasonable attorneys' fees and
costs incurred in obtaining the default and in responding to
the present Motion.” (Id. at 2-3).
court may set aside an entry of default for good cause . . .
.” Fed.R.Civ.P. 55(c). When adjudicating this question,
a court considers if “(1) the plaintiff would be
prejudiced if the judgment is set aside, (2) defendant has no
meritorious defense, or (3) the defendant's culpable
conduct led to the default.” Coen Co., Inc. v. Pan
Int'l, Ltd., 307 F.R.D. 498, 503 (N.D. Cal. 2015)
(quoting In re Hammer, 940 F.2d 524, 525-26 (9th
Cir. 1991)). Meeting any one of these prongs is sufficient.
United States v. Signed Pers. Check No. 730 of Yubran S.
Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) [hereinafter
the Ninth Circuit has emphasized that a trial court should
adjudicate a case on its merits “whenever
possible.” Falk v. Allen, 739 F.2d 461, 463
(9th Cir. 1984); see also Signed, 615 F.3d at 1091
(noting that the standard for relief under Federal Rule of
Civil Procedure 55(c) is the same as the standard for relief
under Federal Rule of Civil Procedure 60(b)).
the court finds that Rowe has identified a plausible defense
in this case. Specifically, he questions the sufficiency of
the complaint's factual allegations regarding his
purported fraudulent behavior. See (ECF No. 21).
Presently, it is not clear that plaintiff's complaint
would satisfy Federal Rule of Civil Procedure's
9(b)'s heightened pleading requirement as it pertains to
this defendant. See Vess v. Ciba-Geigy Corp. USA,
317 F.3d 1097, 1103-04 (9th Cir. 2003); (ECF No. 1); see
also Fed. R. Civ. P. 9(b) (“In alleging fraud or
mistake, a party must state with particularity the
circumstances constituting fraud or mistake.”).
the court holds that plaintiff has not sufficiently shown
that Rowe's dilatory participation in the case has
directly produced prejudicial effects. See (ECF No.
26); see also Nilsson, Robbins, Dalgarn, Berliner, Carson
& Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1546
(9th Cir. 1988) (suggesting that the decision of whether to
apply conditions to the court's setting aside of default
the court will grant Rowe's motion to set aside the
clerk's entry of default. (ECF No. 21). Because this
holding does not change Natural and Lucas's default
status-and the same have not presented an objection to
plaintiffs motion for default judgment-that motion will be
granted as to those two defendants. (ECF No. 15). However,
that motion will be denied as to Rowe.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Rowe's
motion to set aside the clerk's entry of default (ECF No.
21) be, and the same hereby is, GRANTED.
FURTHER ORDERED that Marfret's motion for default
judgment (ECF No. 15) be, and the same hereby is, GRANTED as