Marcos L. Payne v. Shalash Sales LLC, et al.

• Court: District Court, D. Arizona
• Decided: May 7, 2026
• Docket: 2:25-cv-01261
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Marcos L. Payne, ) No. CV-25-01261-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Shalash Sales LLC, et al., ) 12 ) 13 Defendants. ) ) 14 )

15 There are three pending Motions before the Court: (1) Plaintiff’s Motion for Default 16 Judgment (Doc. 20); (2) Defendants’ Motion to Vacate Default Judgment (Doc. 22); and 17 (3) Defendants’ Motion to Set Aside Default (Doc. 30). Having considered the parties’ 18 briefing (Docs. 20, 22, 27, 30, 32), the Court now rules as follows.1 19 I. BACKGROUND 20 Defendant Shalash Sales LLC (“Shalash Sales”) is a used motor vehicle dealer. 21 (Doc. 1 at 2, ¶ 9). Defendant Husam Shalash is the sole owner of Shalash Sales. (Id. at 22 ¶¶ 11–12). In 2024, Shalash Sales advertised a mustang (the “Vehicle”) for sale that had 23 24 25 26 27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motions are suitable for decision without oral argument. See LRCiv 7.2(f); Fed. 28 R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 104,715 miles2 on its odometer. (Id. at 4–5, ¶¶ 35–38). During the parties’ conversations, 2 Shalash Sales allegedly represented to Plaintiff that the Vehicle’s odometer was a true and 3 accurate representation of the Vehicle’s milage. (Id. at 5, ¶ 40). Relying on Shalash Sales’ 4 alleged representation, Plaintiff purchased the Vehicle. (Id. at 5, 8, ¶¶ 45, 71). Plaintiff 5 subsequently learned the Vehicle’s odometer had been altered by Defendants and/or a third 6 party so that the odometer read 104,715 miles, when in reality the Vehicle had over 202,730 7 miles on it. (Id. at 7–9, ¶¶ 59, 61–62, 64–65, 75–76). Plaintiff alleges that he would not 8 have purchased the Vehicle had he known about its true milage. (Id. at 8, ¶ 73). 9 On April 15, 2025, Plaintiff filed a Complaint against Defendants for a violation of 10 the Federal Odometer Fraud Act. (Doc. 1). Defendants did not appear or respond to the 11 Complaint by the response deadline. As a result, Plaintiff filed Applications for Entry of 12 Default against Defendants. (Docs. 9, 14). The Clerk of Court entered default against 13 Defendant Shalash Sales on June 13, 2025 (Doc. 10), and Defendant Shalash on September 14 8, 2025, (Doc. 16). On October 27, 2025, Plaintiff filed a Motion for Default Judgment. 15 (Doc. 20). Roughly one week later, Defendant Shalash filed a pro se Motion to Vacate 16 Default Judgment on behalf of himself and Defendant Shalash Sales. (Doc. 22). Because 17 business entities cannot appear pro se, the Court stated that the Motion to Vacate Default 18 Judgment will only be considered to the extent it was filed by Defendant Shalash. (Doc. 26 19 at 2). On November 26, 2025, Defendants concurrently filed a Notice of Appearance of 20 Counsel (Doc. 29) and a Motion to Set Aside Default (Doc. 30). 21 II. LEGAL STANDARD 22 Rule 55(c) of the Federal Rules of Civil Procedure (“FRCP”) states “[t]he court may 23 set aside an entry of default for good cause.” In determining whether good cause exists, 24 courts in the Ninth Circuit consider the three Falk factors: “(1) whether the plaintiff will 25 be prejudiced, (2) whether the defendant has [no] meritorious defense, and (3) whether

26 27 2 It is unclear whether the Vehicle’s mileage was represented at 104,715 miles or 113,456 miles as Plaintiff alleges both mileages in the Complaint. (Compare Doc. 1 at 4, 28 ¶ 34, with Doc. 1 at 5, ¶ 38; see also Doc. 1-1 at 3, 6–7). 1 culpable conduct of the defendant led to the default.” Falk v. Allen, 739 F.2d 461, 463 (9th 2 Cir. 1984); see also Apache Nitrogen Prods., Inc. v. Harbor Ins. Co., 145 F.R.D. 674, 681 3 (D. Ariz. 1993) (alternatively stating the third factor as “whether good cause exists for the 4 party’s default.”); Amazon.com Inc. v. Elly Infotech LLC, No. CV-23-02353-PHX-DWL, 5 2024 WL 961233, at *1 (D. Ariz. Mar. 6, 2024) (applying the Falk factors to a motion to 6 set aside default). If any one of these factors is true, the court has sufficient reason to refuse 7 to set aside the default. United States v. Signed Personal Check No. 730 of Yubran S. Mesle, 8 615 F.3d 1085, 1091 (9th Cir. 2010) (“Mesle”). However, the court’s discretion under Rule 9 55(c) is “especially broad,” and any doubt should be resolved “in favor of setting aside the 10 entry of default and deciding the case on its merits.” O’Connor v. Nevada, 27 F.3d 357, 11 364 (9th Cir. 1994) (citation omitted). “[J]udgment by default is a drastic step appropriate 12 only in extreme circumstances; a case should, whenever possible, be decided on the 13 merits.” Falk, 739 F.2d at 463. “The movant ‘bears the burden of proving the existence of 14 a justification’ to set aside the default.” Echols v. SafeRent Sols. LLC, No. CV-22-00788- 15 PHX-DWL, 2022 WL 4970312, at *2 (D. Ariz. Oct. 4, 2022) (quoting Cassidy v. Tenorio, 16 856 F.2d 1412, 1415 (9th Cir. 1988)). 17 III. DISCUSSION 18 The Court will begin by addressing Defendant’s Motion to Set Aside Default 19 because, if that motion were granted, Plaintiff’s Motion for Default Judgment would 20 become moot. See, e.g., Troy-CSL Lighting, Inc. v. Bath Kitchen Decor, LLC, No. CV 13- 21 8834 GAF (VBKx), 2014 WL 12911165, at *5 (C.D. Cal. Aug. 28, 2014) (“In light of the 22 Court’s decision to set aside the entry of default against Defendants, Plaintiff’s application 23 for default judgment must be denied. . . . Plaintiff can no longer meet Rule 55(b)’s 24 procedural requirements for default judgment.”). 25 Defendants argue good cause exists to set aside the entry of default because 26 Defendants have meritorious defenses, Defendants’ conduct was not culpable, and Plaintiff 27 would not be prejudiced as this case is in the early stages of litigation. (Doc. 30 at 2–3). 28 Plaintiff argues the procedural history shows “a sustained failure to act despite repeated 1 notice,” (Doc. 32 at 1), and Defendants “do not show they have a meritorious defense,” 2 (Id. at 6). Plaintiff further argues the delay has materially prejudiced him as continued 3 delays in litigation will “impair [his] ability to obtain timely relief.” (Id. at 7). The Court 4 will address each of the Falk factors in turn. 5 A. Prejudice to Plaintiff 6 “To be prejudicial, the setting aside of a judgment must result in greater harm than 7 simply delaying resolution of the case.” TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 8 701 (9th Cir. 2001), overruled on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 9 532 U.S. 141 (2001). “[A] plaintiff is prejudiced if his ability to pursue his claim has been 10 ‘hindered’ due to delay resulting in such tangible harms as the loss of evidence, increased 11 difficulties of discovery, or greater opportunity for fraud or collusion.” Echols, 2022 WL 12 4970312, at *3 (citing TCI Grp. Life Ins. Plan, 244 F.3d at 701). 13 Vacating the entry of default will not burden Plaintiff’s ability to pursue his claim. 14 Plaintiff argues the delay has materially prejudiced him because he “has continued making 15 the loan payments on a vehicle he cannot sell at fair value because of the mileage 16 discrepancy,” (Doc. 32 at 6–7), but “the delay in reaching final judgement that will result 17 from setting aside default here is no greater than the delay that would be present had 18 Defendants timely appeared and responded to the initial complaint.” AJF Inspections Inc. 19 v. IOC Franchising LLC, No. CV-22-01922-PHX-JAT, 2023 WL 3568210, at *4 (D. Ariz. 20 May 19, 2023). No substantive litigation decision has occurred yet, and Plaintiff has not 21 shown that any loss of evidence, increased difficulties of discovery, or any other tangible 22 harm will result if the Court sets aside the entry of default. See Echols, 2022 WL 4970312, 23 at *3. Accordingly, Plaintiff will not be prejudiced if the entry of default is set aside by the 24 Court. 25 B. Meritorious Defenses 26 “A defendant seeking to vacate a default judgment must present specific facts that 27 would constitute a defense.” Mesle, 615 F.3d at 1094 (citation omitted). The burden is not 28 extraordinarily heavy. Id. All Defendant must do is “allege sufficient facts that, if true, 1 would constitute a defense—the truth of those facts is the subject of the later litigation.” 2 Echols, 2022 WL 4970312, at *3 (internal quotation marks omitted) (citing Mesle, 615 3 F.3d at 1094). 4 Defendants assert they “have never purchased a vehicle designated TMU [(“true 5 milage unknown”),” but even if they inadvertently had, they would not know if the Vehicle 6 was deemed a TMU because Defendants do not receive a vehicle’s title when they purchase 7 it with a car financing plan. (Doc. 30 at 3). Defendants also assert that “there was a clerical 8 mistake when entering the [Vehicle’s] odometer mileage,” and “a non-party recorded the 9 wrong odometer mileage.” (Id.). If true, these facts would constitute a defense. 10 Plaintiff argues Defendants’ assertion is not supported by any evidence or 11 documentation, (Doc. 32 at 6), but the Court only considers whether the allegations in the 12 Motion assert a meritorious defense, not whether the allegations are sufficiently supported. 13 See Worldwide Assocs., Inc. v. Golden Mark Maint. Ltd., No. Civ.A. 99–5889, 2000 WL 14 795894, at *1 n.3 (E.D. Pa. June 9, 2000) (“Where the defendant has not answered the 15 complaint, the allegations of its motion to vacate the default judgment determine whether 16 defendant has asserted a meritorious defense.”); Sosa v. Bridge Store, Inc., Nos. 1:10–cv– 17 01494–OWW–SKO, 1:10–cv–01577–OWW–SKO, 2011 WL 1332049, at *3 (E.D. Cal. 18 Apr. 6, 2011) (stating a defendant does not have “to prove their contentions to establish a 19 meritorious defense” but simply must show “that a meritorious defense [is] presented in 20 [their] motion to set aside.”); see also Beitman v. Correct Clear Sols., No. CV-17-03829- 21 PHX-JAT (BSB), 2018 WL 11280509, at *2 (D. Ariz. Nov. 30, 2018) (concluding the 22 meritorious defense factor was satisfied because the motion to set aside asserted “numerous 23 affirmative defenses, which [were] accompanied by sufficient, specific facts.”); Dishon v. 24 Gorham, No. CV-16-04069-PHX-ROS, 2017 WL 11440760, at *2 (D. Ariz. Aug. 7, 2017) 25 (finding that prior proceedings did not impact whether the defendants “presented specific 26 allegations that could constitute a defense” in their motion to set aside entry of default). 27 Thus, the Court finds Defendants’ assertions are sufficient to meet Defendants’ minimal 28 burden for this factor. 1 C. Culpable Conduct 2 “[A] defendant’s conduct is culpable if he has received actual or constructive notice 3 of the filing of the action and intentionally failed to answer.” Mesle, 615 F.3d at 1092 4 (alteration in original) (citation omitted). “[I]n this context the term ‘intentionally’ means 5 that a movant cannot be treated as culpable simply for having made a conscious choice not 6 to answer.” Id. Rather, “the movant must have acted with bad faith, such as an intention to 7 take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise 8 manipulate the legal process.” Id. (internal quotation marks and citation omitted). A 9 defendant is culpable “where there is no explanation of the default inconsistent with a 10 devious, deliberate, willful, or bad faith failure to respond.” Id. “[S]imple carelessness is 11 not sufficient to treat a negligent failure to reply as inexcusable, at least without a 12 demonstration that other equitable factors, such as prejudice, weigh heavily in favor of 13 denial of the motion to set aside a default.” Id. 14 Here, there is no evidence that Defendants acted in bad faith or in an otherwise 15 culpable manner. Defendants claim they mistakenly believed that they had properly filed 16 an answer but did not learn of their mistake until Defendant Shalash returned to the U.S. 17 after traveling internationally (Doc. 30 at 2). Upon his return, Defendant Shalash filed a 18 pro se Motion to Vacate Default Judgment. (Doc. 22). Although the Motion to Vacate 19 Default Judgment can only be considered to the extent it was filed by Defendant Shalash, 20 it is evident that Defendants took affirmative steps to appear in this case and correct their 21 error. (Doc. 26 at 1–2). Plaintiff argues that Defendants’ current explanation contradicts 22 Defendants’ previous explanations, constituting a pattern of culpable conduct and 23 dispelling any claim of good faith. (Doc. 32 at 3–5). But there is no indication that 24 Defendants failed to respond to gain some advantage in this litigation. See Yellowcake, Inc. 25 v. UMG Recordings, Inc., No. 1:22-cv-01109-JAM-CSK, 2025 WL 307503, at *2 (E.D. 26 Cal. Jan. 27, 2025) (“Defendants have provided a good faith explanation for their delay[,] 27 and in the absence of other equitable factors such as prejudice, ‘simple carelessness’ is not 28 1 | sufficient to deny a defendant’s motion to set aside default judgment.”). Therefore, the Court finds that Defendants did not engage in culpable conduct that led to default. 3 IV. CONCLUSION 4 In sum, the Court finds that none of the factors that would negate good cause to set 5 | aside the entry of default are met. Defendants’ Motion to Set Aside Default will be granted. 6 | It follows that Plaintiffs Motion for Default Judgment (Doc. 20) and Defendants’ Motion 7 | to Vacate Default Judgment (Doc. 22) are moot. 8 Accordingly, 9 IT IS ORDERED that Defendants’ Motion to Set Aside Default (Doc. 30) is 10| granted. The Clerk’s Entries of Default (Docs. 10, 16) are vacated. 11 IT IS FURTHER ORDERED that Plaintiff's Motion for Default Judgment (Doc. 20) and Defendants’ Motion to Vacate Default Judgment (Doc. 22) are denied as 13 moot. 14 Dated this 6th day of May, 2026. 15

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