ANTON A. EWING v. ISAAM ISAAC, an individual
Case No.: 22-CV-1009 JLS (MDD)
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
November 28, 2022
Case 3:22-cv-01009-JLS-MDD Document 21 Filed 11/28/22 PageID.271
(ECF Nos. 7, 8 & 10)
Presently before the Court are pro se Plaintiff Anton A. Ewing‘s Motion for Default Judgment Against Defendant (“DJ Mot.,” ECF No. 8) and Defendant Isaam Isaac‘s Motion to Set Aside Clerk‘s Entry of Default (“Mot. to Set Aside,” ECF No. 10). Also before the Court are Defendant‘s Opposition to (“DJ Opp‘n,” ECF No. 9) and Plaintiff‘s Reply in support of (“DJ Reply,” ECF No. 14) the DJ Motion and Plaintiff‘s Opposition to (“Set Aside Opp‘n,” ECF No. 15) and Defendant‘s Reply in support of (“Set Aside Reply,” ECF No. 16) the Motion to Set Aside. The Court vacated the hearing on these matters and took them under submission on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 13. Having carefully considered the Parties’ arguments and
BACKGROUND
Plaintiff, a resident of San Diego, California, is the owner and sole user of a cellular telephone number that is registered on the National Do Not Call Registry. Compl. ¶¶ 1–2, 13. Defendant is a timeshare and travel club broker doing business as, inter alia, “Fun In The Sun Tours” and “Aloha Hawaii Tours and Travel,” with associated addresses in Honolulu, Hawaii; Kailua, Hawaii; and Carlsbad, California. Id. ¶¶ 4-5, 35-37. Plaintiff alleges that Defendant, and/or persons or entities acting on his behalf, robocalled Plaintiff and/or sent Plaintiff telemarketing text messages fourteen times from June 12 through July 2, 2022, for the purposes of soliciting Defendant‘s business, all without Plaintiff‘s consent. Id. ¶¶ 39, 41, 52. Accordingly, Plaintiff filed this action on July 12, 2022, bringing claims for (1) violations of the Telephone Consumer Protection Act (“TCPA“),
On July 27, 2022, Plaintiff filed a Declaration of Mailing indicating that Defendant was served by substituted service. See generally ECF No. 5 (“POS“). Specifically, on July 22, 2022, a process server named Gregory Au indicated that he “left the summons at the individual‘s residence or usual place of abode with Pearl M., a person of suitable age and discretion who resides there” and “who indicated they were the secretary, co-resident” of Defendant; and on July 25, 2022, an individual named Jesus Alvarez indicated that he mailed the Complaint, Civil Case Cover Sheet, and Summons to Defendant at 1130 Kapahulu Avenue, Honolulu, Hawaii 96816 (the “Address“). See generally id.
Plaintiff indicates that he and counsel for Defendant exchanged several e-mails from August 12 through 17, 2022, about possible settlement of this matter. DJ Reply ¶ 6. On August 15, 2022, Plaintiff filed his Application for Entry of Default Against Non-
On September 8, 2022, Defendant opposed Plaintiff‘s DJ Motion and additionally filed the instant Motion to Set Aside. See DJ Opp‘n; Mot. to Set Aside. As relevant to the pending Motions, Defendant submitted a declaration indicating that
[he] was informed that, on July 25, 2022, an individual (male) dressed in civilian clothes walked into the offices of one of the business entities with which [Defendant] is affiliated, located in Honolulu, Hawaii, . . . holding a Federal Express envelope ..., pretended to be a FedEx employee, and asked for [Defendant] by name.
Declaration of Isaam Isaac (“Isaac Decl.,” ECF No. 9-1) ¶ 7. Further, Defendant declares:
The Office Manager, who is not authorized to accept service of process on [Defendant‘s] behalf . . . , informed this person that [Defendant] was not present at that office and advised him to leave [the] package by the door (which he did), but she was not informed of what was inside the package.
Id. “Roughly 2 or 3 days later, a package containing a Complaint and Summons arrived at that same office. This package, sent by U.S. mail, did not contain any return envelope and did not have a ‘notice and acknowledgement’ form.” Id. A process server personally served Defendant at his home in Hawaii on the evening of August 23, 2022, after Defendant‘s counsel informed Plaintiff that Defendant had not been properly served. Id. ¶ 8.
DEFENDANT‘S MOTION TO SET ASIDE DEFAULT
I. Legal Standard
Pursuant to
It is the defendant‘s burden to establish that good cause to vacate the entry of default exists. See TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001), overruled in part on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 149 (2001). The Ninth Circuit has held that “[t]he ‘good cause’ standard that governs vacating an entry of default under
(1) whether [the defendant] engaged in culpable conduct that led to the default; (2) whether [the defendant] had a meritorious defense; or (3) whether reopening the default judgment would prejudice [the plaintiff]. As these factors are disjunctive, the district court [is] free to deny the motion “if any of the three factors [is] true.”
Id. (quoting Am. Ass‘n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1008 (9th Cir. 2000)); see also In re Hammer, 940 F.2d 524, 525–26 (9th Cir. 1991) (citing Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987)).
II. Analysis
Defendant contends that good cause exists to set aside the Clerk‘s Entry of Default because Plaintiff failed to properly serve Defendant before seeking default and each of the relevant “good cause” factors are satisfied. See ECF No. 10-1 (“Mot. Mem.“) at 4. The Court addresses each of these arguments in turn.
A. Service of Process
As an initial matter, Defendant contends that he was not properly served until after the Clerk‘s Entry of Default was entered on August 16, 2022. See DJ Opp‘n at 9–13; Mot. Mem. at 4. Plaintiff, meanwhile, contends that proper service was made “on the Office Manager at Defendant‘s normal and usual place of employment” and default was entered “after the 21st day after service.” Set Aside Opp‘n at 3 n.2.
1. Legal Standard
The Federal Rules of Civil Procedure provide that, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party‘s default.”
“Once service is challenged, plaintiffs bear the burden of establishing that service was valid under
Pursuant to the Federal Rules of Civil Procedure,
an individual--other than a minor, an incompetent person, or a person whose waiver has been filed--may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual‘s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Under the laws of the State of California, where this district court is located, an individual outside the state may be served “in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt,” in which case service “is deemed complete on the 10th day after such mailing.”
The California Code of Civil Procedure provides several additional methods by which service of an individual may be accomplished without a court‘s intervention. First, an individual may be served by personal delivery of the summons and complaint, in which case service is complete at the time of the delivery.
by leaving a copy of the summons and complaint at the person‘s dwelling house, usual place of abode, usual place of business, or usual mailing address . . . , in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left,
in which case service “is deemed complete on the 10th day after the mailing.”
Third, service may be effected by mail, in which case the summons and complaint must be accompanied by two copies of a “notice and acknowledgment” in substantially the form set forth in
Proof of service on a person residing outside of California shall be made as prescribed by
Finally, the rules for service of process in the State of Hawaii, where service was attempted and ultimately made, “contain[] similar requirements [as Federal Rule of Civil Procedure 4(e)] for service of process on an individual.” Monet v. Hawaii, No. CV 21-00368 LEK-KJM, 2022 WL 105194, at *6 (D. Haw. Jan. 11, 2022); see Haw. R. Civ. P. 4(d)(1); see also Kriege v. Morimoto, No. CV 16-00324 DKW-KJM, 2017 WL 2841326, at *3 n.2 (D. Haw. July 3, 2017) (“Hawaii Rule of Civil Procedure 4 mandates service of an individual in precisely the same manner as Federal Rule of Civil Procedure 4(e)(2).“) (citing Haw. R. Civ. P. 4(d)); Krizek v. Queens Med. Ctr., No. CV 00293 JMS-RLP, 2018 WL 6588505, at *1 (D. Haw. Sept. 28, 2018) (noting that Hawaii Rule of Civil Procedure 4 “mirror[s] the federal rule for service of process“).
2. Analysis
Here, Defendant claims that Plaintiff failed to properly serve Defendant before seeking entry of default. Mot. Mem. at 5. The Court agrees.
It is clear that, prior to the entry of default in this matter, Plaintiff did not serve Defendant in accordance with
Again, Plaintiff did not personally serve Defendant until August 23, 2022. Isaac Decl. ¶ 8. Nor does Plaintiff provide any evidence that Defendant was properly served by mail pursuant to
The Court notes that, in this regard, neither Party appears to have fully grasped the requirements for substituted service. Defendant is correct that attempted personal delivery “with reasonable diligence” is a prerequisite for substituted service on an individual, but the mailing requirements for substituted service do not include the notice and acknowledgement form required for standalone mail service pursuant to
Even overlooking these deficiencies in the service of process, however, the entry of default in this matter was premature. Had proper substituted service occurred, service was effected on August 4, 2022, ten days after the summons and complaint were mailed on July 25, 2022.
Even assuming Defendant was properly served and default was properly entered, Defendant contends that each of the relevant “good cause” factors supports setting aside the Clerk‘s Entry of Default. See Mot. Mem. at 4–9; DJ Opp‘n at 15–18. Plaintiff does not meaningfully respond to this argument and therefore essentially concedes the issue. See N.Y. Marine & Gen. Ins. Co. v. Peters, No. 3:21-CV-1692 W (WVG), 2022 WL 1104741, at *1 (S.D. Cal. Apr. 13, 2022) (noting failure to oppose argument raised in motion concedes the truth of the argument) (citations omitted). Nonetheless, the Court finds, upon its independent analysis of the “good cause” factors, that all three support setting aside the default in this matter.
1. Culpable Conduct
First, Defendant‘s conduct was not culpable. “[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.” TCI Grp., 244 F.3d at 697 (emphasis in original) (quoting Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988)) (citing Meadows, 817 F.2d at 521). “Neglectful failure to answer as to which the defendant offers a credible, good faith explanation negating any intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process is not ‘intentional’ under [the Ninth Circuit‘s] default cases.” Id.
“Obviously, [Defendant] could not have engaged in culpable conduct leading to the default when his adversary sought to cut short the pleading response period he was lawfully allowed to take, and then seek default on [Defendant‘s] failure to timely plead or respond.” Williamson v. Gunvalson, No. 2-13-CV-2022-JAD-GWF, 2014 WL 590480, at *2 (D. Nev. Feb. 14, 2014); see also Stebbins v. Polano, No. 21-CV-04184-JSW, 2021 WL 8532699, at *2 (N.D. Cal. Oct. 28, 2021) (“If [the defendant] was not served with the [pleading], it cannot be said that it acted intentionally in its failure to respond.“). Moreover, once Defendant found out about the entry for default and the motion for default judgment, it moved promptly to set aside the default and oppose the motion for default judgment. See
2. Meritorious Defense
Second, Defendant has adequately alleged a meritorious defense. Defendant‘s burden to prove a meritorious defense is “not extraordinarily heavy.” RingCentral, Inc. v. Quimby, 781 F. Supp. 2d 1007, 1012 (N.D. Cal. 2011) (quoting TCI Grp., 244 F.3d at 700). “All that is necessary to satisfy the ‘meritorious defense’ requirement is to allege sufficient facts that, if true, would constitute a defense.” United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1094 (9th Cir. 2010) (quoting TCI Grp., 244 F.3d at 700). “[T]he question whether the factual allegation [i]s true’ is not to be determined by the court when it decides the motion to set aside the default“; “[r]ather, that question ‘would be the subject of the later litigation.‘” Id. (quoting TCI Grp., 244 F.3d at 700).
Here, Defendant asserts that this Court lacks personal jurisdiction over him, that Plaintiff fails to state a claim, and that Defendant cannot be held liable for the alleged violations because he did not participate in the alleged violations. Mot. Mem. at 6–7; DJ Opp‘n at 13–15, 16–17. The Court finds Defendant‘s allegations sufficient to satisfy the low threshold of establishing a potentially meritorious defense for purposes of the instant Motion to Set Aside. See, e.g., AMA Multimedia, LLC v. Madon, No. 217CV03037GMNEJY, 2020 WL 5096476, at *6 (D. Nev. Aug. 28, 2020) (finding
3. Prejudice to Plaintiff
Finally, there is no prejudice to Plaintiff. “To be prejudicial, the setting aside of a judgment must result in greater harm than simply delaying resolution of the case. Rather, ‘the standard is whether [plaintiff‘s] ability to pursue his claim will be hindered.‘” TCI Grp., 244 F.3d at 701 (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)) (citing Thompson v. Am. Home Assur. Co., 95 F.3d 429, 433–34 (6th Cir. 1996)). There is no indication that Plaintiff would be prejudiced here. Indeed, Defendant filed its Motion to Set Aside approximately three and a half weeks after the Clerk‘s Entry of Default was entered. See Default (filed August 16, 2022); Mot. to Set Aside (filed September 8, 2022). “When, as here, a defendant‘s response is filed within a month of the entry of default, prejudice to the plaintiff as a consequence of setting aside entry of default is unlikely.” Veracity Wireless, Inc. v. Virtual Fleet Mgmt., LLC, No. 17-CV-295 JLS (BLM), 2019 WL 4266550, at *7 (S.D. Cal. Feb. 26, 2019) (citing Canfield v. VSH Rest. Corp., 162 F.R.D. 431, 434 (N.D.N.Y. 1995)). Accordingly, the Court finds that this factor, too, supports granting the Motion to Set Aside.
III. Conclusion
““The law does not favor defaults; therefore, any doubts as to whether a party is in default should be decided in favor of the defaulting party.” Bonita Packing Co. v. O‘Sullivan, 165 F.R.D. 610, 614 (C.D. Cal. 1995) (citation omitted). Because Defendant has adequately demonstrated good cause to set aside the entry of default and in light of the “strong preference for deciding cases on their merits,” Direct Mail Specialists, 840 F.2d at 690, the Court GRANTS Defendant‘s Motion to Set Aside.
Because, for the reasons provided supra, the Court finds it appropriate to grant Defendant‘s Motion to Set Aside, the Court DENIES AS MOOT Plaintiff‘s DJ Motion. Further, to the extent Plaintiff urges the Court to sanction Defendant‘s counsel, in light of Plaintiff‘s standalone Motion for Sanctions that raises many of the same arguments, see ECF No. 17, the Court reserves ruling on the issue of sanctions at this time.
CONCLUSION
In light of the foregoing, the Court (1) GRANTS Defendant‘s Motion to Set Aside Entry of Default (ECF No. 10) and (2) DENIES AS MOOT Plaintiff‘s Motion for Entry of Default Judgment (ECF No. 8). The Court therefore VACATES the Clerk‘s Entry of Default (ECF No. 7). Defendant SHALL RESPOND to Plaintiff‘s Complaint on or before December 30, 2022.2
IT IS SO ORDERED.
Dated: November 28, 2022
Hon. Janis L. Sammartino
United States District Judge