United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Honorable Edward J. Lodge, U.S. District Judge.
before the Court are Plaintiff's Motion for Entry of
Default Judgment and Defendant's Motion to Set Aside
Entry of Default Judgment and Dismissal. (Dkt. 13, 17.) The
facts and legal arguments are adequately presented in the
briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that
the decisional process would not be significantly aided by
oral argument, the Motions are decided on the record.
AND PROCEDURAL BACKGROUND
February 16, 2018, Plaintiff, Matthew McDermott, filed a
Complaint asserting two claims against the Defendant, Monday
Monday LLC (“Monday”), alleging Monday used Mr.
McDermott's photographs without copyright permission and
removed Mr. McDermott's copyright information from the
photographs. (Dkt. 1.) An Affidavit of Service was filed on
March 29, 2018 representing that the Summons, Complaint, and
Litigation Order were mailed to Monday. (Dkt. 5.) No. answer
was filed. As a result, Mr. McDermott filed a Motion for
Entry of Default. (Dkt. 8, 9.) On May 18, 2018, the Clerk of
the Court entered Default in this matter. (Dkt. 11.)
on May 22, 2018, Mr. McDermott filed the Motion for Entry of
Default Judgment. (Dkt. 13-15.) The case was then reassigned.
On June 6, 2018, Monday filed a Motion to Set Aside Default
Judgment and for Dismissal. (Dkt. 17.) Neither side filed a
response and the time for doing so has passed. Both Motions
are ripe and pending before this Court.
McDermott seeks entry of default judgment under Federal Rule
of Civil Procedure 55(b)(2) and Local Civil Rule 55.2(b).
(Dkt. 13, 15.) Monday's Motion asks the Court to set
aside the entry of default judgment and dismiss the case for
failure to timely serve. (Dkt. 17.) The Court will first take
up Monday's Motion as it is dispositive of all the
Motion to Set Aside Entry of Default
55(c) allows the Court to set aside an entry of default for
“good cause shown.” Fed.R.Civ.P. 55(c). The Ninth
Circuit has held “that three factors derived from the
‘good cause' standard...governs the lifting of
entries of default under Fed.R.Civ.P. 55(c).... Those factors
are: 1) whether the defendant's culpable conduct led to
the default; 2) whether the defendant has a meritorious
defense; and 3) whether reopening the default judgment would
prejudice the plaintiff.” TCI Group Life Ins. Plan
v. Knoebber, 244 F.3d 691 (9th Cir. 2001), as amended on
denial of rehearing and rehearing en banc (May 09, 2001)
(citations omitted). The party seeking to vacate a default
bears the burden of demonstrating that these factors favor
vacating the judgment. See Id. (citing Cassidy
v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988)). Monday
asserts setting aside the entry of default is proper in this
case because it was not properly served as required by Idaho
Code § 30-21-412. (Dkt. 17.)
Culpability of Defendant's Conduct:
Ninth Circuit has stated that “a defendant's
conduct is culpable if he has received actual or constructive
notice of the filing of the action and intentionally failed
to answer.” Id., at 697.
asserts it was not personally notified of this action. (Dkt.
17.) The Court finds Monday has shown a sufficient reason for
its failure to file a timely answer and/or otherwise respond
in this action as there are discrepancies in the filings
relating to service as to the dates of service and
Affidavit of Service states that on or about March 10, 2018
the Summons, Complaint, and Litigation Order were mailed to
Monday at the address listed on the most recent annual report
filed with the Idaho Secretary of State: 3501 W. Elder Dr.,
Ste. 110, Boise, ID 83705. (Dkt. 5.) Monday filed a
Declaration of Jennifer Martinez, the receptionist tasked
with processing all of Monday's correspondence, which
states there is no record of Monday having been served by
mail with the Summons on or about March 5, 2018. (Dkt. 17-1
at ¶ 4.) The ...