Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Callister v. Owen

United States District Court, D. Idaho

April 25, 2017

DAVID CALLISTER, Plaintiff,
v.
CHET OWEN, an individual, Defendant.

          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

         INTRODUCTION

         Pending 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.

         All 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.

         BACKGROUND FACTS

         On 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.[1] 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.

         On November 10, 2016, Owen sent a text message[2] 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. (Dkt. 6.)

         On 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.

         On 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.)

         On 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. (Dkt. 13.)

         On 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.)

         DISCUSSION

         Owen 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.

         I. Motion to Take Judicial Notice (Dkt. 24)

         Callister 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.[3] For the following reasons, the Court will deny Callister's request.

         Federal 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.