United States District Court, D. Nevada
before the court is plaintiff Carolina Diaz's motion for
default judgment as to defendant Octaform, Inc.
(“Octaform”). (ECF No. 18). Octaform did not file
a response and the time to do so has passed.
before the court is Diaz's motion for default judgment as
to defendant David Richardson. (ECF No. 19). Richardson did
not file a response and the time to do so has passed.
before the court is Richardson and Octaform's
(collectively “defendants”) motion to set aside
default. (ECF No. 20). Diaz filed a response (ECF No. 23), to
which defendants replied (EF No. 24).
August 24, 2017, Diaz initiated this action against
Richardson, Octaform, and Octaform Systesm, Inc., asserting
six causes of action: (1) hostile work environment in
violation of Title VII of the Civil Rights Act, 42 U.S.C.
§ 2000e; (2) employment discrimination in violation of
NRS 613.330; (3) negligence; (4) assault; (5) battery; and
(6) intentional infliction of emotional distress. (ECF No.
brief terms, the complaint alleges that Richardson
constructively terminated Diaz by subjecting her to sexual
harassment. Id. Defendants contend that this action
is a retaliatory lawsuit for a separate trade secrets case
that Octaform Canada is currently litigating against Diaz and
other individuals. (ECF No. 20).
also represent that after Diaz initiated this lawsuit, the
parties engaged in a months-long meet-and-confer concerning
the merits of this action. Id. Defendants
purportedly engaged in these discussions in order to persuade
Diaz to dismiss frivolous claims or amend the complaint.
Id. At no point during these discussions did
defendants file an answer or otherwise respond to the
April 17, 2018, Diaz moved for entry of clerk's default
without serving defendants. (ECF Nos. 13, 14). On May 22,
2018, the clerk entered default. (ECF No. 17). On November 8,
2018, Diaz filed two motions for default judgment without
serving defendants. (ECF Nos. 18, 19).
March 14, 2019, defendants eventually learned that the clerk
had entered default and Diaz was seeking default judgment.
(ECF No. 20). Now, defendants move to set aside clerk's
Rule of Civil Procedure 55(c) provides that “[t]he
court may set aside an entry of default for good cause . .
.” Fed. Ru. Civ. P. 55(c). 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) (quotes and citation 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.
the court considers the same factors prior to vacating an
entry of default as it would for a default judgment, the test
is less stringent when the court has not entered default
judgment. See Hawaii Carpenters' Trust Funds v.
Stone, 794 F.2d 508, 513 (9th Cir. 1986). Indeed,
“[t]he court's discretion is especially broad where
. . . it is entry of default that is being set aside, rather
than a default judgment.” Mendoza v. Wight Vineyard
Mgmt., 783 F.2d 941, 945 (9th Cir. 1986).
did not engage in culpable conduct because they were
conferring with Diaz in good faith regarding the merits of
this action and incorrectly believed that Diaz had abandoned
her claims. See Signed Personal Check No. 730 of Yubran
S. Mesle, 615 F.3d at 1092 (holding that culpable
conduct requires acting with bad faith). Defendants have also
provided email communications ...