1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 David Quinton Brooks, ) No. CV 21-00516-TUC-LAB 9 ) Plaintiff, ) ORDER 10 ) vs. ) 11 ) Fast Park and Relax, ) 12 ) Defendant. ) 13 ) 14 Pending before the court is the defendant’s motion to set aside entry of default filed 15 on March 10, 2022. (Doc. 18) The plaintiff filed a response on March 17, 2022. (Doc. 23) 16 The defendant filed a reply on March 24, 2022. (Doc. 25) 17 Also pending is the defendant’s previously filed motion for an extension of time to 18 file a motion to set aside default filed on March 8, 2022. (Doc. 17) The plaintiff did not file 19 a timely response. See LRCiv 7.2(i). In that motion, the defendant asks that this court take 20 no action in this matter for 10 days to allow the defendant time to file a motion to set aside 21 entry of default. (Doc. 17) 22 The plaintiff in this case, Brooks, alleges that he interviewed for a job as a shuttle 23 driver at the defendant’s place of business, Fast Park and Relax (“Fast Park”). (Doc. 11) He 24 was interviewed by a manager named Lisa. Id. During the interview, Lisa referred to him 25 as “honey” on several occasions. Id. Brooks claims that her use of this term violated his 26 rights under Title VII of the Civil Rights Act of 1964. Id. 27 28 1 Brooks filed proof of service indicating that service on Fast Park was accomplished 2 on February 3, 2022. (Doc. 13) Fast Park did not file a timely responsive pleading. The 3 Clerk entered default on March 7, 2022. (Doc. 16) In the pending motion, Fast Park moves 4 that this court set aside the default pursuant to Fed.R.Civ.P. 55(c). (Doc. 18) 5 6 Jurisdiction 7 The Magistrate Judge assumes without deciding that a motion to set aside entry of 8 default is a dispositive matter and issues this order pursuant to 28 U.S.C. § 636(c)(1). 9 Pursuant to section 636(c)(1), the Magistrate Judge is authorized to conduct any and all 10 proceedings in a civil action upon consent from all parties. The docket indicates that the 11 plaintiff, Brooks, and the defendant, Fast Park, have consented to Magistrate Judge 12 jurisdiction. (Docs. 7, 24) It appears that all parties have consented, but the record is not 13 entirely straightforward. 14 In the original Complaint, Brooks named two defendants, Fast Park and the manager, 15 Lisa. (Doc. 1) On January 19, 2022, however, he filed an Amended Complaint. (Doc. 11) 16 The Amended Complaint fails to explicitly name the parties in violation of Fed.R.Civ.P. 10 17 and LRCiv 7.1(a)(3), so it is unclear if that complaint names one defendant or two. See 18 Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule, when a 19 plaintiff files an amended complaint, the amended complaint supercedes the original, the 20 latter being treated thereafter as non-existent.”) (punctuation modified). Eight days later, 21 however, Brooks applied for a Summons for the defendant, Fast Park. (Doc. 12) On the 22 Summons form, Brooks explicitly stated that this action has a single plaintiff and a single 23 defendant, Fast Park. (Doc. 12) On March 17, 2022, Brooks filed a second Amended 24 Complaint. (Doc. 22) In that complaint, Brooks explicitly stated that there is only a single 25 plaintiff and a single defendant, Fast Park, which makes sense considering the nature of the 26 claim. Id.; see also Lesane v. Aloha Airlines, Inc., 226 F. App'x 693, 700 (9th Cir. 2007) 27 (“The dismissal of John Brom as a defendant to the Title VII claims was proper because 28 1 individual employees, including supervisors and managers, are not personally liable as 2 ‘employers’ under Title VII.). 3 Based on the court record to date, the court concludes that there is only one defendant 4 in the pending action, Fast Park, and all parties have consented to the jurisdiction of the 5 Magistrate Judge pursuant to section 636(c)(1). (Docs. 7, 24) In the alternative, the 6 Magistrate Judge issues this order pursuant to LRCiv 3.7(b). 7 8 Discussion 9 “The court may set aside an entry of default for good cause . . . .” Fed.R.Civ.P. 55(c). 10 “To determine ‘good cause’, a court must consider three factors: (1) whether the party 11 seeking to set aside the default engaged in culpable conduct that led to the default; (2) 12 whether it had no meritorious defense; or (3) whether reopening the default . . . would 13 prejudice the other party.” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 14 F.3d 1085, 1091 (9th Cir. 2010) (punctuation modified) “Crucially, however, judgment by 15 default is a drastic step appropriate only in extreme circumstances; a case should, whenever 16 possible, be decided on the merits.” Id. 17 The court first considers the issue of “culpable conduct.” “A defendant’s conduct is 18 culpable if he has received actual or constructive notice of the filing of the action and 19 intentionally failed to answer.” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 20 615 F.3d 1085, 1092 (9th Cir. 2010). “[I]n this context the term ‘intentionally’ means that a 21 movant cannot be treated as culpable simply for having made a conscious choice not to 22 answer; rather, to treat a failure to answer as culpable, the movant must have acted with bad 23 faith, such as an intention to take advantage of the opposing party, interfere with judicial 24 decisionmaking, or otherwise manipulate the legal process.” Id. (punctuation modified). 25 In its motion, Fast Park explains that it received the Amended Complaint on Friday, 26 February 4, 2022. (Doc. 18, p. 2) It submitted the Amended Complaint to its insurance 27 carrier on Monday, February 7, 2022. (Doc. 18, p. 3) On February 9, 2022, Fast Park was 28 informed that the claim had been assigned to a claims adjuster, who would be in contact. Id. 1 Fast Park finally heard from the claims adjuster on February 23, 2022. Id. “[T]he claims 2 adjuster noted that subject to a coverage determination, Defendant could retain Jackson 3 Lewis P.C. as legal counsel approved by the insurance carrier.” Id. The claims adjuster 4 finally referred the matter to legal counsel, Jackson Lewis, on March 2, 2022. (Doc. 18, p. 5 4) It appears from the docket that a responsive pleading was due February 24, 2022. Id. 6 Brooks filed a request for default on March 4, 2022. (Doc. 15) The Clerk entered 7 default on March 7, 2022. (Doc. 16) That same day, Fast Park discovered that default had 8 been entered, and two days later, it filed the pending motion for a 10-day extension of time 9 to file a motion to set aside the default. (Doc. 17) On March 10, 2022, Fast Park filed the 10 pending motion to set aside the default pursuant to Fed.R.Civ.P. 55(c). (Doc. 18) 11 On this record, it appears that Fast Park failed to file a timely responsive pleading due 12 to administrative negligence by either Fast Park or its insurance carrier, or both. There is no 13 evidence that Fast Park “intentionally” failed to file a timely responsive pleading. There is 14 therefore no evidence of culpable conduct. 15 In his response, Brooks argues generally that Fast Park was “careless” and its legal 16 representation fell below professional standards. (Doc. 23, p. 3) He does not, however, 17 argue that Fast Park “intentionally” failed to file a timely responsive pleading.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 David Quinton Brooks, ) No. CV 21-00516-TUC-LAB 9 ) Plaintiff, ) ORDER 10 ) vs. ) 11 ) Fast Park and Relax, ) 12 ) Defendant. ) 13 ) 14 Pending before the court is the defendant’s motion to set aside entry of default filed 15 on March 10, 2022. (Doc. 18) The plaintiff filed a response on March 17, 2022. (Doc. 23) 16 The defendant filed a reply on March 24, 2022. (Doc. 25) 17 Also pending is the defendant’s previously filed motion for an extension of time to 18 file a motion to set aside default filed on March 8, 2022. (Doc. 17) The plaintiff did not file 19 a timely response. See LRCiv 7.2(i). In that motion, the defendant asks that this court take 20 no action in this matter for 10 days to allow the defendant time to file a motion to set aside 21 entry of default. (Doc. 17) 22 The plaintiff in this case, Brooks, alleges that he interviewed for a job as a shuttle 23 driver at the defendant’s place of business, Fast Park and Relax (“Fast Park”). (Doc. 11) He 24 was interviewed by a manager named Lisa. Id. During the interview, Lisa referred to him 25 as “honey” on several occasions. Id. Brooks claims that her use of this term violated his 26 rights under Title VII of the Civil Rights Act of 1964. Id. 27 28 1 Brooks filed proof of service indicating that service on Fast Park was accomplished 2 on February 3, 2022. (Doc. 13) Fast Park did not file a timely responsive pleading. The 3 Clerk entered default on March 7, 2022. (Doc. 16) In the pending motion, Fast Park moves 4 that this court set aside the default pursuant to Fed.R.Civ.P. 55(c). (Doc. 18) 5 6 Jurisdiction 7 The Magistrate Judge assumes without deciding that a motion to set aside entry of 8 default is a dispositive matter and issues this order pursuant to 28 U.S.C. § 636(c)(1). 9 Pursuant to section 636(c)(1), the Magistrate Judge is authorized to conduct any and all 10 proceedings in a civil action upon consent from all parties. The docket indicates that the 11 plaintiff, Brooks, and the defendant, Fast Park, have consented to Magistrate Judge 12 jurisdiction. (Docs. 7, 24) It appears that all parties have consented, but the record is not 13 entirely straightforward. 14 In the original Complaint, Brooks named two defendants, Fast Park and the manager, 15 Lisa. (Doc. 1) On January 19, 2022, however, he filed an Amended Complaint. (Doc. 11) 16 The Amended Complaint fails to explicitly name the parties in violation of Fed.R.Civ.P. 10 17 and LRCiv 7.1(a)(3), so it is unclear if that complaint names one defendant or two. See 18 Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) (“As a general rule, when a 19 plaintiff files an amended complaint, the amended complaint supercedes the original, the 20 latter being treated thereafter as non-existent.”) (punctuation modified). Eight days later, 21 however, Brooks applied for a Summons for the defendant, Fast Park. (Doc. 12) On the 22 Summons form, Brooks explicitly stated that this action has a single plaintiff and a single 23 defendant, Fast Park. (Doc. 12) On March 17, 2022, Brooks filed a second Amended 24 Complaint. (Doc. 22) In that complaint, Brooks explicitly stated that there is only a single 25 plaintiff and a single defendant, Fast Park, which makes sense considering the nature of the 26 claim. Id.; see also Lesane v. Aloha Airlines, Inc., 226 F. App'x 693, 700 (9th Cir. 2007) 27 (“The dismissal of John Brom as a defendant to the Title VII claims was proper because 28 1 individual employees, including supervisors and managers, are not personally liable as 2 ‘employers’ under Title VII.). 3 Based on the court record to date, the court concludes that there is only one defendant 4 in the pending action, Fast Park, and all parties have consented to the jurisdiction of the 5 Magistrate Judge pursuant to section 636(c)(1). (Docs. 7, 24) In the alternative, the 6 Magistrate Judge issues this order pursuant to LRCiv 3.7(b). 7 8 Discussion 9 “The court may set aside an entry of default for good cause . . . .” Fed.R.Civ.P. 55(c). 10 “To determine ‘good cause’, a court must consider three factors: (1) whether the party 11 seeking to set aside the default engaged in culpable conduct that led to the default; (2) 12 whether it had no meritorious defense; or (3) whether reopening the default . . . would 13 prejudice the other party.” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 14 F.3d 1085, 1091 (9th Cir. 2010) (punctuation modified) “Crucially, however, judgment by 15 default is a drastic step appropriate only in extreme circumstances; a case should, whenever 16 possible, be decided on the merits.” Id. 17 The court first considers the issue of “culpable conduct.” “A defendant’s conduct is 18 culpable if he has received actual or constructive notice of the filing of the action and 19 intentionally failed to answer.” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 20 615 F.3d 1085, 1092 (9th Cir. 2010). “[I]n this context the term ‘intentionally’ means that a 21 movant cannot be treated as culpable simply for having made a conscious choice not to 22 answer; rather, to treat a failure to answer as culpable, the movant must have acted with bad 23 faith, such as an intention to take advantage of the opposing party, interfere with judicial 24 decisionmaking, or otherwise manipulate the legal process.” Id. (punctuation modified). 25 In its motion, Fast Park explains that it received the Amended Complaint on Friday, 26 February 4, 2022. (Doc. 18, p. 2) It submitted the Amended Complaint to its insurance 27 carrier on Monday, February 7, 2022. (Doc. 18, p. 3) On February 9, 2022, Fast Park was 28 informed that the claim had been assigned to a claims adjuster, who would be in contact. Id. 1 Fast Park finally heard from the claims adjuster on February 23, 2022. Id. “[T]he claims 2 adjuster noted that subject to a coverage determination, Defendant could retain Jackson 3 Lewis P.C. as legal counsel approved by the insurance carrier.” Id. The claims adjuster 4 finally referred the matter to legal counsel, Jackson Lewis, on March 2, 2022. (Doc. 18, p. 5 4) It appears from the docket that a responsive pleading was due February 24, 2022. Id. 6 Brooks filed a request for default on March 4, 2022. (Doc. 15) The Clerk entered 7 default on March 7, 2022. (Doc. 16) That same day, Fast Park discovered that default had 8 been entered, and two days later, it filed the pending motion for a 10-day extension of time 9 to file a motion to set aside the default. (Doc. 17) On March 10, 2022, Fast Park filed the 10 pending motion to set aside the default pursuant to Fed.R.Civ.P. 55(c). (Doc. 18) 11 On this record, it appears that Fast Park failed to file a timely responsive pleading due 12 to administrative negligence by either Fast Park or its insurance carrier, or both. There is no 13 evidence that Fast Park “intentionally” failed to file a timely responsive pleading. There is 14 therefore no evidence of culpable conduct. 15 In his response, Brooks argues generally that Fast Park was “careless” and its legal 16 representation fell below professional standards. (Doc. 23, p. 3) He does not, however, 17 argue that Fast Park “intentionally” failed to file a timely responsive pleading. 18 Fast Park further argues that it has meritorious defenses to the claim in the Amended 19 Complaint. “A defendant seeking to [set aside entry of default] must present specific facts 20 that would constitute a defense.” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 21 615 F.3d 1085, 1094 (9th Cir. 2010); see also Id. at 1091 (The standard to set aside entry of 22 default is the same standard that is used to determine whether a default judgment should be 23 set aside.). “But the burden on a party seeking to [set aside entry of default] is not 24 extraordinarily heavy.” Id. “All that is necessary to satisfy the ‘meritorious defense’ 25 requirement is to allege sufficient facts that, if true, would constitute a defense: the question 26 whether the factual allegation is true is not to be determined by the court when it decides the 27 motion to set aside the default.” Id. (punctuation modified). “Rather, that question would 28 be the subject of the later litigation.” Id. 1 Fast Part notes that Brooks raised his claim initially with the EEOC, but the EEOC 2 dismissed his charge “without seeking any position statement or response from Defendant.” 3 (Doc. 18, p. 7) Fast Park maintains that this is evidence that Brooks’s allegations are 4 insufficient to support a viable claim under Title VII. Fast Park also attached to its motion 5 a proposed Answer. (Doc. 18-5) In that proposed Answer, Fast Park raises seventeen 6 affirmative defenses. Id. It alleges, among other things, that Brooks failed to mitigate his 7 damages, that Fast Park acted without improper motive, that Brooks’s claims are beyond the 8 scope of his EEOC charge, that Brooks’s alleged damages exceed the appropriate statutory 9 caps, and that Fast Park’s conduct was not extreme, outrageous, reckless, or negligent. (Doc. 10 18-5, pp. 4-6) On this record, the court finds that Fast Park satisfies the “meritorious 11 defense” requirement. 12 Brooks argues in his response that Fast Park has not disclosed all relevant information. 13 (Doc. 23, p. 3) At this stage in the proceedings, however, the court only determines whether 14 Fast Park has alleged a defense that should be decided on the merits, not whether that defense 15 is meritorious considering all the evidence. 16 Finally, Fast Park argues that Brooks would not be prejudiced if the default were set 17 aside. The court agrees, the delay resulting from Fast Park’s failure to timely file its answer 18 is only a matter of a month or two. There is no evidence in the record that Brooks would be 19 prejudiced. 20 In his response, Brooks states that “nothing is frivolous about this case.” (Doc. 23, 21 p. 3) He further expresses frustration that he has followed the Rules of Civil Procedure but 22 Fast Park has not. He does not, however, explain how he would be prejudiced if entry 23 default were lifted. 24 The court finds that Fast Park has not engaged in culpable conduct, Fast Park has 25 alleged meritorious defenses, and setting aside the default would not prejudice Brooks. See 26 U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 27 2010). Accordingly, 28 1 IT IS ORDERED as follows: 2 The Clerk of the Court is instructed to designate the defendant “Unknown Party, 3 || named as Lisa N/A, Manager” as TERMINATED. 4 The defendant’s motion to set aside entry of default, filed on March 10, 2022, is 5 || GRANTED. (Doc. 18) The defendant’s deadline for filing a responsive pleading is 6 || extended to April 15, 2022. The defendant notes that the second Amended Complaint filed 7 || by Brooks on March 17, 2022 was filed in violation of Fed.R.Civ.P. 15(a). (Doc. 25, p. 3, 8 | n. 1) The court agrees. The court further notes that it does not comply with Fed.R.Civ.P. 9 || 8(a), which would make responding to that pleading problematic. (Doc. 22) In fact, it reads 10 || less like a complaint and more like a response to Fast Park’s lodged Answer combined with 11 || a response to Fast Park’s motion to set aside default. /d. Accordingly, 12 The second Amended Complaint filed by Brooks on March 17, 2022 is STRICKEN. 13 | (Doc. 22) Fast Park’s responsive pleading should be directed to the Amended Complaint 14 || previously filed on January 19, 2022. (Doc. 11) 15 The defendant’s motion for an extension of time to file a motion to set aside default, 16 || filed on March 8, 2022, is GRANTED. (Doc. 17); see LRCiv 7.2(1). 17 18 DATED this 28" day of March, 2022. 19 20 21 Reobrj ( i. B wrt ay Leslie A. Bowman United States Magistrate Judge 23 24 25 26 27 28 -6-