1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 EDWARD SHAISHNIKOFF, CASE NO. C24-1586-KKE 8
Plaintiff, ORDER DENYING MOTION FOR 9 v. DEFAULT AND SETTING ASIDE DEFAULT 10 M/V NAMAKA, O.N. 510289, et al.,
11 Defendants.
12 Plaintiff Edward Shaishnikoff seeks default judgment against Defendants. Dkt. No. 17. 13 Defendants have appeared and move to set aside the clerk’s entry of default. Dkt. No. 20. The 14 Court finds the relevant factors support setting aside the entry of default and denying Plaintiff’s 15 motion for default judgment. 16 I. INTRODUCTION 17 On October 1, 2024, Plaintiff filed this suit against Defendants M/V Namaka, Kevala 18 Jokiel, Tomo Kovacevic, and Tours Around Paradise, LLC. Dkt. No. 1.1 On December 6, 2024, 19 Plaintiff amended his complaint to add Defendant Nui Tours LLC. Dkt. No. 6. This operative 20 complaint alleges five causes of action: breach of contract and wrongful refusal to pay wages when 21 22
23 1 Plaintiff previously filed an identical lawsuit in July 2024. See Shaishnikoff v. M/V Namaka et al., Case No. 2:24- cv-00988-KKE, Dkt. No. 1 (W.D. Wash. filed July 7, 2024). This case is pending but Defendants have not appeared in that matter. On February 10, 2025, in response to an order to show cause, Plaintiff stated his intention to file a 24 motion to consolidate these two pending matters. 1 due; maritime lien foreclosure; Jones Act negligence, unseaworthiness; and willful and wanton 2 failure to pay maintenance, cure, and unearned wages. Id. at 6–10. On January 9, 2025, Plaintiff 3 moved for entry of default against Defendants under Federal Rule of Civil Procedure 55(a). Dkt.
4 No. 9. Plaintiff’s motion was supported by the declaration of Alex Hussey that stated he served 5 the first amended complaint and summons to Tomo Kovacevic at 1901 Ke’eaumoku Street by 6 leaving them at the home with a person of suitable age. Dkt. No. 11 ¶ 3. Plaintiff also submitted 7 an attorney declaration stating Kevala Jokial is the registered agent for both companies. Dkt. No. 8 12 ¶ 2. That declaration also attached proof of service attesting to personal service on Kevala 9 Jokial, Tours Around Paradise LLC, and Nui Tours LLC, at 42 Ahui Street on December 13, 2024. 10 Dkt. No. 12-2. 11 On January 15, 2025, the Court entered a clerk’s entry of default against Defendants. Dkt. 12 No. 15. The next day, Defendants appeared through counsel. Dkt. No. 16. On January 17, 2025,
13 Plaintiff moved for default judgment. Dkt. No. 17. Defendants oppose the motion and seek to 14 aside the entry of default. Dkt. No. 20. Plaintiff replied. Dkt. No. 24. Neither party requested 15 oral argument. The matter is ripe for the Court’s decision. The Court will first determine whether 16 the default should be set aside and, if not, will then determine whether the motion for default 17 judgment should be granted. 18 II. ANALYSIS 19 A. Jurisdiction 20 The Court has subject matter jurisdiction over this matter under the Jones Act (46 U.S.C. 21 § 688), federal question jurisdiction based on maritime law (28 U.S.C. §§ 1331, 1333), and 22 diversity jurisdiction (28 U.S.C. § 1332) and supplemental jurisdiction (28 U.S.C. § 1367). Dkt.
23 No. 6 ¶ 1. 24 1 B. The Court Sets Aside the Entry of Default. 2 1. Legal Standard 3 Federal Rule of Civil Procedure 55(c) states that “the court may set aside an entry of default
4 for good cause[.]” “The court’s discretion is especially broad where, as here, it is entry of default 5 that is being set aside, rather than a default judgment.” Mendoza v. Wight Vineyard Mgmt., 783 6 F.2d 941, 945 (9th Cir. 1986). “To determine ‘good cause’, a court must consider three factors: 7 (1) whether the party seeking to set aside the default engaged in culpable conduct that led to the 8 default; (2) whether it had no meritorious defense; or (3) whether reopening the default judgment 9 would prejudice the other party.” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 10 F.3d 1085, 1091 (9th Cir. 2010) (cleaned up). “[A] finding that any one of these factors is true is 11 sufficient reason for the district court to refuse to set aside the default.” Id. 12 2. Entry of Default Is Set Aside.
13 All three factors support setting aside default. 14 With respect to the first factor, the Court will consider a party’s conduct culpable if it “has 15 received actual or constructive notice of the filing of the action and intentionally failed to answer.” 16 Mesle, 615 F.3d at 1092. “‘[I]ntentionally’ means that a movant cannot be treated as culpable 17 simply for having made a conscious choice not to answer; rather…the movant must have acted 18 with bad faith, such as an intention to take advantage of the opposing party, interfere with judicial 19 decision making, or otherwise manipulate the legal process.” Id. Defendants argue the delay in 20 appearing was due to their belief that service was improper. Dkt. No. 20 at 10–12. The record 21 contains conflicting evidence on whether Defendants were properly served. Compare Dkt. Nos. 22 11, 12-2, with Dkt. Nos. 21, 22. Even if service was proper, Defendants believed that service was
23 improper. And upon entry of default, defense counsel immediately contacted plaintiff’s counsel 24 (Dkt. No. 23-1 at 4) and appeared (Dkt. No. 16). Defendants’ failure to respond to the complaint 1 now that they have appeared is not explained.2 But even with Defendants’ unexplained failure to 2 answer or respond, Defendants’ actions are “inconsistent with a devious, deliberate, willful, or bad 3 faith failure to respond.” TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 698 (9th Cir. 2001), 4 overruled on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001). There is 5 no evidence Defendants engaged in culpable conduct such that default should not be set aside. 6 The second factor—a meritorious defense—requires Defendants to “present specific facts 7 that would constitute a defense.” Mesle, 615 F.3d at 1094 (citing Knoebber, 244 F.3d at 700). 8 This burden “is not extraordinarily heavy” and requires only that the defendant allege sufficient 9 facts that, if true, would constitute a defense. Id. The court does not decide, however, whether the 10 factual allegations are true when it decides the motion to set aside the default. Id. Rather, that 11 question is “the subject of the later litigation.” Id. In Defendants’ opposition to the motion for 12 default, they contest the adequacy of Plaintiff’s pleading, the extent and timing of Plaintiff’s
13 alleged injuries, and whether Plaintiff ever reported such injuries to Defendants. Dkt. No. 20 at 14 10. While Defendants have not yet answered the Complaint, they have raised the possibility of 15 various defenses. See Soaring Helmet Corp. v. Nanal Inc., No. C09-789JLR, 2009 WL 10689610, 16 at *1 (W.D. Wash. Nov. 4, 2009) (finding defenses asserted in motion to set aside sufficient to 17 support finding of meritorious defense).
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3
4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 EDWARD SHAISHNIKOFF, CASE NO. C24-1586-KKE 8
Plaintiff, ORDER DENYING MOTION FOR 9 v. DEFAULT AND SETTING ASIDE DEFAULT 10 M/V NAMAKA, O.N. 510289, et al.,
11 Defendants.
12 Plaintiff Edward Shaishnikoff seeks default judgment against Defendants. Dkt. No. 17. 13 Defendants have appeared and move to set aside the clerk’s entry of default. Dkt. No. 20. The 14 Court finds the relevant factors support setting aside the entry of default and denying Plaintiff’s 15 motion for default judgment. 16 I. INTRODUCTION 17 On October 1, 2024, Plaintiff filed this suit against Defendants M/V Namaka, Kevala 18 Jokiel, Tomo Kovacevic, and Tours Around Paradise, LLC. Dkt. No. 1.1 On December 6, 2024, 19 Plaintiff amended his complaint to add Defendant Nui Tours LLC. Dkt. No. 6. This operative 20 complaint alleges five causes of action: breach of contract and wrongful refusal to pay wages when 21 22
23 1 Plaintiff previously filed an identical lawsuit in July 2024. See Shaishnikoff v. M/V Namaka et al., Case No. 2:24- cv-00988-KKE, Dkt. No. 1 (W.D. Wash. filed July 7, 2024). This case is pending but Defendants have not appeared in that matter. On February 10, 2025, in response to an order to show cause, Plaintiff stated his intention to file a 24 motion to consolidate these two pending matters. 1 due; maritime lien foreclosure; Jones Act negligence, unseaworthiness; and willful and wanton 2 failure to pay maintenance, cure, and unearned wages. Id. at 6–10. On January 9, 2025, Plaintiff 3 moved for entry of default against Defendants under Federal Rule of Civil Procedure 55(a). Dkt.
4 No. 9. Plaintiff’s motion was supported by the declaration of Alex Hussey that stated he served 5 the first amended complaint and summons to Tomo Kovacevic at 1901 Ke’eaumoku Street by 6 leaving them at the home with a person of suitable age. Dkt. No. 11 ¶ 3. Plaintiff also submitted 7 an attorney declaration stating Kevala Jokial is the registered agent for both companies. Dkt. No. 8 12 ¶ 2. That declaration also attached proof of service attesting to personal service on Kevala 9 Jokial, Tours Around Paradise LLC, and Nui Tours LLC, at 42 Ahui Street on December 13, 2024. 10 Dkt. No. 12-2. 11 On January 15, 2025, the Court entered a clerk’s entry of default against Defendants. Dkt. 12 No. 15. The next day, Defendants appeared through counsel. Dkt. No. 16. On January 17, 2025,
13 Plaintiff moved for default judgment. Dkt. No. 17. Defendants oppose the motion and seek to 14 aside the entry of default. Dkt. No. 20. Plaintiff replied. Dkt. No. 24. Neither party requested 15 oral argument. The matter is ripe for the Court’s decision. The Court will first determine whether 16 the default should be set aside and, if not, will then determine whether the motion for default 17 judgment should be granted. 18 II. ANALYSIS 19 A. Jurisdiction 20 The Court has subject matter jurisdiction over this matter under the Jones Act (46 U.S.C. 21 § 688), federal question jurisdiction based on maritime law (28 U.S.C. §§ 1331, 1333), and 22 diversity jurisdiction (28 U.S.C. § 1332) and supplemental jurisdiction (28 U.S.C. § 1367). Dkt.
23 No. 6 ¶ 1. 24 1 B. The Court Sets Aside the Entry of Default. 2 1. Legal Standard 3 Federal Rule of Civil Procedure 55(c) states that “the court may set aside an entry of default
4 for good cause[.]” “The court’s discretion is especially broad where, as here, it is entry of default 5 that is being set aside, rather than a default judgment.” Mendoza v. Wight Vineyard Mgmt., 783 6 F.2d 941, 945 (9th Cir. 1986). “To determine ‘good cause’, a court must consider three factors: 7 (1) whether the party seeking to set aside the default engaged in culpable conduct that led to the 8 default; (2) whether it had no meritorious defense; or (3) whether reopening the default judgment 9 would prejudice the other party.” U.S. v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 10 F.3d 1085, 1091 (9th Cir. 2010) (cleaned up). “[A] finding that any one of these factors is true is 11 sufficient reason for the district court to refuse to set aside the default.” Id. 12 2. Entry of Default Is Set Aside.
13 All three factors support setting aside default. 14 With respect to the first factor, the Court will consider a party’s conduct culpable if it “has 15 received actual or constructive notice of the filing of the action and intentionally failed to answer.” 16 Mesle, 615 F.3d at 1092. “‘[I]ntentionally’ means that a movant cannot be treated as culpable 17 simply for having made a conscious choice not to answer; rather…the movant must have acted 18 with bad faith, such as an intention to take advantage of the opposing party, interfere with judicial 19 decision making, or otherwise manipulate the legal process.” Id. Defendants argue the delay in 20 appearing was due to their belief that service was improper. Dkt. No. 20 at 10–12. The record 21 contains conflicting evidence on whether Defendants were properly served. Compare Dkt. Nos. 22 11, 12-2, with Dkt. Nos. 21, 22. Even if service was proper, Defendants believed that service was
23 improper. And upon entry of default, defense counsel immediately contacted plaintiff’s counsel 24 (Dkt. No. 23-1 at 4) and appeared (Dkt. No. 16). Defendants’ failure to respond to the complaint 1 now that they have appeared is not explained.2 But even with Defendants’ unexplained failure to 2 answer or respond, Defendants’ actions are “inconsistent with a devious, deliberate, willful, or bad 3 faith failure to respond.” TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 698 (9th Cir. 2001), 4 overruled on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001). There is 5 no evidence Defendants engaged in culpable conduct such that default should not be set aside. 6 The second factor—a meritorious defense—requires Defendants to “present specific facts 7 that would constitute a defense.” Mesle, 615 F.3d at 1094 (citing Knoebber, 244 F.3d at 700). 8 This burden “is not extraordinarily heavy” and requires only that the defendant allege sufficient 9 facts that, if true, would constitute a defense. Id. The court does not decide, however, whether the 10 factual allegations are true when it decides the motion to set aside the default. Id. Rather, that 11 question is “the subject of the later litigation.” Id. In Defendants’ opposition to the motion for 12 default, they contest the adequacy of Plaintiff’s pleading, the extent and timing of Plaintiff’s
13 alleged injuries, and whether Plaintiff ever reported such injuries to Defendants. Dkt. No. 20 at 14 10. While Defendants have not yet answered the Complaint, they have raised the possibility of 15 various defenses. See Soaring Helmet Corp. v. Nanal Inc., No. C09-789JLR, 2009 WL 10689610, 16 at *1 (W.D. Wash. Nov. 4, 2009) (finding defenses asserted in motion to set aside sufficient to 17 support finding of meritorious defense). Though Defendants would have been better served 18 submitting evidence in support of these allegations or filing a responsive pleading, in light of the 19 policy in favor of adjudicating cases on their merits, the Court finds that the apparent dispute of 20 facts is sufficient at this stage to support setting aside the default. 21 22
23 2 In her email to Plaintiff’s counsel, defense counsel states “We are still conducting our factual investigation, and we therefore anticipate responding to the complaint within three weeks (21 calendar days) after an order setting aside the default.” Dkt. No. 23-1 at 3. Defendants fail to provide any legal authority to support their choice of deadline to 24 respond to the complaint. See Fed. R. Civ. P. 12(a). 1 The last factor—prejudice to Plaintiff—must be “greater harm than simply delaying 2 resolution of the case.” Mesle, 615 F.3d at 1095. Plaintiff does not identify any such prejudice. 3 The Court finds there is good cause to set aside the entry of default.
4 Because the Court sets aside its entry of default under Federal Rule of Civil Procedure 5 55(a), Plaintiff is not entitled to default judgment under Federal Rule of Civil Procedure 55(b). 6 Local Rules W.D. Wash. LCR 55(b)(1) (“No motion for judgment by default should be filed 7 against any party unless the court has previously granted a motion for default against that party 8 pursuant to LCR 55(a) or unless default otherwise has been entered.”). 9 III. CONCLUSION 10 For these reasons, Defendant’s motion to set aside default is GRANTED. Dkt. No. 20. 11 Plaintiff’s motion for default judgment is DENIED. Dkt. No. 17. 12 The Clerk is instructed sets aside the entry of default against Defendants. Dkt. No. 15.
13 Plaintiff shall move to consolidate his two pending cases or to dismiss one of the 14 duplicative cases by March 14, 2025. 15 Defendants must answer or respond to the complaint (Dkt. No. 6) by March 7, 2025. 16 The Court will issue other initial case deadlines shortly. 17 Dated this 24th day of February, 2025. 18 A 19 Kymberly K. Evanson 20 United States District Judge 21 22 23 24