United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: MOTION TO SET ASIDE
CLERK'S ENTRY OF DEFAULT (DKT. 21); AND MOTION TO TAKE
JUDICIAL NOTICE (DKT. 24)
Honorable Candy W. Dale, United States Magistrate Judge
before the Court are two motions: (1) Defendant's Motion
to Set Aside Clerk's Entry of Default (Dkt. 21); and (2)
Plaintiff's Motion to Take Judicial Notice (Dkt. 24.)
Both motions are ripe for the Court's consideration.
parties have consented to the jurisdiction of a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). In the
interest of avoiding delay, and because the Court
conclusively finds the decisional process would not be
significantly aided by oral argument, the pending motions
will be decided on the record and without oral argument.
Dist. Idaho. L. Rule 7.1(d). As discussed more fully below,
the Court will grant the motion to set aside the Clerk's
entry of default and deny the motion to take judicial notice.
October 24, 2016, Plaintiff David Callister filed this breach
of contract action against Defendant Chet Owen. (Dkt. 1.) On
October 31, 2016, Callister served the summons and Complaint
on Owen's son, Chad Owen, at their family home in
Molalla, Oregon. Dec. Owen, ¶ 8 (Dkt. 21-2 at 2.)
Apparently, Chad Owen did not inform his father of the
service. On the date of service, Owen was away on business in
Panama; he returned November 1, 2016. Id. at ¶
3. Owen's deadline to answer the Complaint or file a
responsive pleading was November 21, 2016.
November 10, 2016, Owen sent a text message to Callister.
Before receiving a response, Owen left for a domestic
business trip from November 14, 2016 through November 24,
2016. Id. at ¶ 4. On November 21, 2016, during
Owen's business trip and on the day of the answer
deadline, Callister responded, "Chet at this point
you'll have to work with the attorney." Id.
at ¶ 7. Owen contends this text message was the first
indication he had that legal claims may have been lodged
against him. On November 22, 2016, Callister filed a motion
for Entry of Default Judgment pursuant to Fed.R.Civ.P. 55.
November 26, 2016, Owen's wife informed him that the
summons and Complaint in this matter was served on their son
some time previously. Dec. Owen, ¶ 8 (Dkt. 21-2 at 2).
Over the Thanksgiving holiday weekend, Owen searched for an
attorney. Id. at ¶ 9. Owen purportedly left
voicemails at serval Boise law firms in an attempt to retain
counsel; however, Owen alleges the firms declined to
represent him because his dispute was out of their areas of
expertise. Id. That Saturday, November 27, 2016, and
through December 4, 2016, Owen was in California for
business. Id. at ¶ 5.
November 28, 2016, The Court denied Callister's motion
for entry of default judgment as premature, indicating that
Callister could not seek an entry of default judgment against
Owen without first seeking a Clerk's entry of default.
(Dkt. 8.) The next day, Callister filed a motion for
Clerk's entry default. (Dkt. 9.) On December 6, 2016, the
Clerk of the Court entered default against Owen. (Dkt. 11.)
December 6, 2016, through December 18, 2016, Owen was
travelling on business in Panama. Dec. Owen, ¶ 7 (Dkt.
21-2 at 2). On December 7, 2016, while in Panama, Owen
contacted and was able to retain his current counsel. The
next day, his counsel entered an appearance in this matter.
February 7, 2017, Owen filed a motion to set aside the
Clerk's entry of default. (Dkt. 21.) Callister opposes
the motion. (Dkt. 24.) Related to the documents filed in
support of his response, Callister filed a motion for the
Court to take judicial notice of other court documents where
default has been entered against Owen. (Dkt. 24.)
contends good cause exists to support his motion to set aside
the Clerk's entry of default. Callister argues Owen
cannot establish good cause to set aside the default because
Owen's own culpable conduct led to default being entered
against him. The Court will address Callister's related
motion to take judicial notice before addressing Owen's
motion to set aside the Clerk's entry of default.
Motion to Take Judicial Notice (Dkt. 24)
filed a motion requesting the Court to take judicial notice
pursuant to Fed.R.Evid. 201(b) of certain print-outs that
appeared on the websites of the Oregon Judicial Department,
the Idaho Repository, and the United States Bankruptcy Court,
for the District of Oregon. (Dkt. 27.) The print-outs
indicate that Owen has had several entries of default and
default judgment entered against him in the past. Owen
opposes the motion, arguing that Callister has failed to
state for what purpose the materials he seeks to be
judicially noticed should be used. For the following reasons,
the Court will deny Callister's request.
Rule of Evidence 201 provides that the Court may take
judicial notice of an "adjudicative fact, "
provided that the:
[J]udicially noticed fact is not subject to reasonable
dispute because it: (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose ...