Robert P. Torres, Plaintiff,
Charles Ryan, et al., Defendants.
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court are Defendant Kevin Lewis' ("Defendant Lewis") Motion to Set Aside Default and Motion to Strike Plaintiff's Affidavit of Service (Doc. 52), Plaintiff Robert P. Torres' Response to Defendant's Motion to Set Aside Default and Motion to Strike (Doc. 55), and Plaintiff's Motion for Default Judgment (Doc. 56). The Court now rules on the Motions.
Plaintiff Robert P. Torres, who is confined in the Arizona State Prison Complex (ASPC), Lewis Complex, Eagle Point Unit, in Buckeye, Arizona, filed a pro se civil rights Complaint against Defendants pursuant to 42 U.S.C. § 1983. (Doc. 1). The Court dismissed the Complaint for failure to state a claim with leave to amend. (Doc. 9).
On March 19, 2012, Plaintiff filed his First Amended Complaint with this Court. (Doc. 10). On September 28, 2012, the Court dismissed Count I, ordered Defendants Ryan, Greeley, Lewis, King, Echeverria and Clausen to respond to Counts II and III, and dismissed the remaining Defendants. (Doc. 17 at 18). Plaintiff was provided with a service packet for the remaining six Defendants and was ordered to return the service packet within twenty one days from the filing of the Order. ( Id. ). Upon timely receipt of the service packet from Plaintiff, the Court ordered the United States Marshal (the "U.S. Marshal") to provide service of process for the Defendants pursuant to Federal Rule of Civil Procedure 4. ( Id. at 19). The Court ordered Plaintiff to complete service by November 27, 2012. ( Id. at 18).
On October 19, 2012, the Court sent Plaintiff's completed service packet to the U.S. Marshal. On November 8, 2012, the U.S. Marshal attempted service on Defendants Ryan and Lewis. (Doc. 36, Doc. 35). On December 20, 2012, the U.S. Marshall submitted a Process Receipt and Return for Defendant Ryan, and a Process Receipt and Return for Defendant Lewis, each accompanied by two separate "Waiver of Service of Summons, " both signed by Kelly Dudley, Attorney General Liaison for the Arizona Department of Corrections. ( Id. ). On both of the waivers filed with the Court, the line labeled "Printed name of party waiving service of summons" was left blank. ( Id. ). Plaintiff was charged sixteen dollars total, eight dollars each, by the U.S. Marshal for service of Defendant Ryan and Defendant Lewis. ( Id. ). Additionally, on the Process Receipt and Return form for Defendant Lewis, neither the box indicating that service had been executed, nor the box indicating that the U.S. Marshal was unable to serve Defendant Lewis had been checked. (Doc. 35).
On December 17, 2012, Plaintiff filed a motion requesting notification of the status of service on Defendants Ryan, Lewis, Clausen, Greeley, Echeverra, and King. (Doc. 32). On January 2, 2013, Plaintiff filed an Affidavit (Doc. 43) attachment to his Motion for Status of Service (Doc. 32). On page three of this affidavit, Plaintiff stated that on December 20, 2012, Plaintiff received notification that the U.S. Marshals effected service upon Defendant Ryan and Defendant Lewis on November 8, 2012. (Doc. 43 at 3).
On January 11, 2013, Plaintiff filed an Application for Entry of Default against Defendant Lewis. (Doc. 48). Attached to the request for Entry of Default, Plaintiff included an Affidavit which stated that "Defendant Lewis was served with a copy of the summons and complaint as appears from the proof of service file." ( Id. at 2). On January 16, 2013, the Court entered Default against Defendant Lewis pursuant to Federal Rule of Civil Procedure 55(a). (Doc. 51).
Defendant Lewis then filed a Motion to set aside this default and a Motion to strike Plaintiff's Affidavit of Service (Doc. 43). (Doc. 52). In response, Plaintiff opposes Defendant Lewis' motions. (Doc. 55). Plaintiff also moves for default judgment to be entered against Defendant Lewis under Federal Rule of Civil Procedure 55(b)(2). (Doc. 56).
II. Defendant Lewis' Motion to Set Aside Default (Doc. 52)
Defendant Lewis requests that this Court set aside the "default judgment against [him] pursuant to Federal Rules of Civil Procedure 60(b)(3) and 55." (Doc 52). However, the Court has only granted a default under Federal Rule of Civil Procedure 55(a) and has not granted a default judgment under Rule 55(b). See e.g. Symantec Corp. v. Global Impact, Inc., 559 F.3d 922 (9th Cir. 2009). As a result, Federal Rule of Civil Procedure 60 does not apply here because there has not been a judgment issued.
The Court may set aside the entry of default if good cause is shown. Fed.R.Civ.P. 55(c). In determining whether good cause has been shown, the Court considers: 1) whether there was culpable conduct on the part of the defendant; 2) whether any meritorious defenses are available, and 3) whether there is any prejudice to the plaintiff. See TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001). This standard "is the same as is used to determine whether a default judgment should be set aside under Rule 60(b)." United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1095 (9th Cir. 2010). "[T]he party seeking to vacate a default judgment bears the burden of demonstrating that these factors favor vacating the judgment." TCI Grp. Life Ins. Plan, 244 F.3d at 696. This burden, however, is not "extraordinarily heavy." Id. at 700.
Essentially, Defendant Lewis argues the default entered against him should be set aside because he was never personally served as is required by Federal Rule of Civil Procedure 4. (Doc. 52 at 1-5). As will be discussed more fully herein, there is confusion regarding the document in the record purporting to be a waiver of service on behalf of Defendant Lewis. (Doc. 35). Nonetheless, the Court will analyze whether Defendant Lewis has ...