Mark Ferry, et al. v. DF Growth REIT, LLC, et al.

• Court: District Court, S.D. California
• Decided: November 14, 2025
• Docket: 3:22-cv-02001
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARK FERRY, et al., Case No.: 22-cv-02001-AJB-VET

12 Plaintiffs, ORDER 13 v. 14 DF GROWTH REIT, LLC, et al., 15 Defendants. 16

17 18 On August 6, 2025, this Court granted the Buchalter firm’s motion to withdraw as 19 counsel for Defendants DF Growth REIT, LLC; DF Growth REIT II, LLC; and 20 DiversyFund, Inc. (the “Entity Defendants”) and for Defendants Craig Cecilio and Alan 21 Lewis (the “Individual Defendants”). (Doc. No. 68.) 22 The Court ordered the Entity Defendants “to secure new counsel and have new 23 counsel file a notice of appearance no later than September 8, 2025.” (Id. at 4.) The Court 24 warned the Entity Defendants that “[f]ailure to do so will result in the Court striking [their] 25 Answer [(Doc. No. 55)] and an entry of default judgment against [them].” (Id.) 26 The Court also ordered the Individual Defendants “to either have new counsel file a 27 notice of appearance, or if intending to proceed pro se, file a notice apprising the Court of 28 their contact information, including their current mailing addresses, telephone numbers, 1 and email addresses no later than September 8, 2025.” (Id.) The Court warned the 2 Individual Defendants that “[f]ailure to do [either] will result in the Court striking [their] 3 Answer [(Doc. No. 55)] and an entry of default against them.” (Id.) 4 By November 10, 2025, no new counsel filed an entry of appearance on behalf of 5 any of the Entity or Individual Defendants. Nor had Individual Defendants filed notices 6 apprising the Court of their contact information so that they may proceed pro se. 7 On that date, the Court issued an order striking the Entity and Individual Defendants’ 8 Answer. (Doc. No. 72.) The Clerk of Court entered default against the Entity and Individual 9 Defendants. (Doc. No. 73.) 10 Two days later, the Individual Defendants filed notices of appearance with the Court. 11 (Doc. Nos. 74; 75.) Each Individual Defendant stated in their notice, “I recognize that I 12 failed to file this notice before the deadline set by the court and respectfully request that 13 the court accept this notice and allow me to proceed.” (Doc. Nos. 74; 75.) 14 The Court recognizes that, generally, “cases should be decided upon their merits 15 whenever reasonably possible.” Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 16 (9th Cir. 2009). Furthermore, the “rules for determining when a default should be set aside 17 are solicitous towards movants, especially those whose actions leading to the default were 18 taken without the benefit of legal representation.” United States v. Signed Personal Check 19 No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1089 (9th Cir. 2010). “A document filed pro 20 se is to be liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 21 The Court therefore construes the Individual Defendants’ notices as requests to set 22 aside the entry of default against them pursuant to Rule 55(c) of the Federal Rules of Civil 23 Procedure. See id. The Court finds good cause exists to set aside the entry of default. 24 In turn, the Court also accepts the Individual Defendants’ tardy notices and will 25 allow them to proceed, beginning by filing new answers to the Third Amended Complaint. 26 The Court cautions, however, that “pro se litigants are not excused from following court 27 rules,” Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997), and that they 28 “must follow the same rules of procedure that govern other litigants,” King v. Atiyeh, 814 ] || F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cnty., 2 F.3d 896, 925-28 (9th Cir. 2012). Any further failure to comply with the Court’s 3 || deadlines will lead to a final entry of default. See Fed. R. Civ. P. 55(a). The Court may also 4 ||impose other sanctions for failure to adhere to the rules of court. See, e.g., Fed. R. Civ. P. 5 || 11(c), 37(b); see also Local Civ. R. 16.1.b. 6 The Individual Defendants may wish to familiarize themselves with the Court’s 7 ||resources for pro se litigants. See Representing Yourself in Federal Court (Pro Se), United 8 || States District Court Southern District of California, https://perma.cc/4GZZ-MJT3. 9 Accordingly, the Court FINDS that good cause exists to set aside the entry of default 10 || against the Individual Defendants and SETS ASIDE the entry of default against Individual 11 || Defendants. The Court further ORDERS the Individual Defendants to file new answers to 12 || the Third Amended Complaint by DECEMBER 5, 2025. 13 IT IS SO ORDERED. 14 || Dated: November 14, 2025

16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28