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McDermott v. Monday Monday LLC

United States District Court, D. Idaho

August 15, 2018

MATTHEW MCDERMOTT, an individual, Plaintiff,
v.
MONDAY MONDAY LLC, an Idaho limited liability company, Defendant.

          MEMORANDUM DECISION AND ORDER

          Honorable Edward J. Lodge, U.S. District Judge.

         INTRODUCTION

         Pending 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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.)

         Thereafter, 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.

         DISCUSSION

         Mr. 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 pending matters.[1]

         1. Motion to Set Aside Entry of Default

         Rule 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.)

         A. Culpability of Defendant's Conduct:

         The 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.

         Monday 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 Monday's address.

         The 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 ...


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