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Lowery v. Barcklay

United States District Court, Ninth Circuit

January 6, 2014

Christian Dale Lowery, Plaintiff,
v.
Unknown Barcklay, [1] et al., Defendants.

ORDER

ROBERT C. BROOMFIELD, Senior District Judge.

Introduction

In this prisoner civil rights action, brought pursuant to 42 U.S.C. § 1983, pro se plaintiff inmate Christian Dale Lowery alleges that defendant Barcklay was deliberately indifferent to his "medical needs" in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.[2] Co. (Doc. 1) at 4, [3] ¶ 4. On February 14, 2013, defendant Barcklay was personally served with the summons and complaint in this action. (Doc. 6). When the defendant did not timely answer or otherwise respond to the complaint, on April 12, 2013, nearly two months after service, the plaintiff filed a declaration for entry of default. Three days later, on April 15, 2013, the Clerk of the Court entered default as to defendant Barcklay pursuant to Fed.R.Civ.P. 55(a). (Doc. 12). Shortly thereafter, on April 24, 2013, pursuant to Fed.R.Civ.P. 55(b)(1), [4] plaintiff Lowery filed a motion for entry of a default judgment against defendant Barcklay in the amounts of $90, 000.00 for compensatory damages, $150, 000.00 in punitive damages, and $350.00 for plaintiff's filing fee. Mot. (Doc. 15) at 2. On June 3, 2013, the plaintiff filed a second nearly identical motion for entry of default judgment against defendant Barcklay (Doc. 18).

While those two motions were pending, the Honorable Lawrence O. Anderson, a Magistrate Judge in this District, "order[ed] Defendant and the Arizona Attorney General's Office to show cause why a default judgment should not be entered against Defendant." Order to Show Cause and Order ("OSC") (Doc. 19) at 5:16-17. The defendant timely filed her response to that OSC, which she combined with a motion to set aside the entry of default pursuant to Fed.R.Civ.P. 55(c). (Docs. 22 and 23). As the Magistrate Judge permitted, the plaintiff filed a reply to the defendant's response to the OSC (Doc. 35) and a response to the defendant's motion to set aside the default (Doc. 29). Because the Magistrate Judge expressly held plaintiff's two default judgment motions "in abeyance pending any response to th[at] [OSC][, ]" OSC (Doc. 19) at 7:10-11 (emphasis omitted), those motions (Docs. 15 and 18) are currently pending before this court, as well as defendant Barcklay's motion to set aside the entry of default (Doc. 23).

Simultaneously with the filing of her motion to set aside entry of default, the defendant filed a motion for leave to file an untimely answer (Doc. 24), and lodges her proposed answer (Doc. 25). The court will address this pending motion as well. For the reasons set forth below, the court DENIES plaintiff's motions and GRANTS the defendant's motions.

Background

As the Magistrate Judge ordered, defendant Barcklay, through the Arizona Attorney General's Office, timely responded to the OSC as to why a default judgment should not be entered against the defendant. In her supporting declaration, defendant Karen Barcklay explains what transpired on February 14, 2013, after she was served with the summons and complaint in this action. At that time, defendant Barcklay was working for Wexford Health Services which contracted with the Arizona Department of Corrections ("ADC") to provide health services to inmates housed in ADC facilities. Barcklay Decl'n (Doc. 23-1) at 2:19-20, ¶ 2. When she received the summons and complaint in this action, defendant Barcklay declares that she "was told by Belen Briseno, an Administrative Assistant with Wexford, that Cyndy Hale, a Wexford Facilities Health Administrator ("FHA") instructed that service packets were to be sent to Wexford." Id. at 2:24-25, ¶ 3.

Because "[t]hat information was consistent with [her] previous practice at Wexford[, ]" defendant Barcklay "sent the service packet to the Wexford FHA" to be forwarded "to the appropriate person at Wexford[.]" Id. at 3:1-3, ¶ 4. Defendant Barcklay also "informed" the Wexford FHA that she "was working for the ADC at the time of the allegations in th[is] lawsuit." Id. at 3:3-4, ¶ 4. After "acknowledg[ing]" receipt of the service packet, the Wexford FHA "indicated" to defendant Barcklay that "she would take care of it." Id. at 3:4, ¶ 4. "To the best of [her] knowledge[, ]" defendant Barcklay explains that "the service packages at that time were directed to Michael Bodek at Wexford for distribution to the appropriate attorneys for defense or forwarded to ADC, if the staff member was employed by ADC at the time of the incident underlying the lawsuit." Id. at 3:5-8, ¶ 5.

Defendant Barcklay claims that she did not hear anything "more about this lawsuit until mid-June 2013 when [she] was contacted by an Arizona Assistant Attorney General and received a copy of the [OSC] in the mail." Id. at 3:9-11, ¶ 5. Throughout this time, defendant Barcklay "had no reason to believe [that] this lawsuit was not being properly defended." Id. at 3:12, ¶ 7. Indeed, she had previously "followed Wexford's lawsuit procedure" described above without incident. Id. at 3:13, ¶ 7. In addition, defendant Barcklay notes that "[i]t [wa]s not unusual to have long periods of time without communications with [her] attorneys after [she] receive[s] a lawsuit and deliver[s] it to the appropriate people under Wexford company procedure or ADC policy when [she] was employed by ADC." Id. at 3:13-16, ¶ 7. From defendant Barcklay's standpoint, the foregoing shows that she has "not taken any action to delay or disrupt this litigation [.]" Id. at 3:17, ¶ 8. Moreover, defendant Barcklay "believe[s] that the events resulting in the entry of default against [her]... were completely out of [her] control." Id. at 3:17-19, ¶ 8.

To support her motion to set aside the entry of default, defendant Barcklay also is relying upon the declaration of Katherine Perez, an Executive Staff Assistant in ADC's legal services section. In her declaration, Ms. Perez outlines that section's procedure for processing newly commenced lawsuits in which ADC employees are named parties. If an ADC employee is served or has delivered to them "any legal paperwork[, ]" they are "required to send" such paperwork to the "ADC's legal services section." Perez Decl'n (Doc. 23-1) at 5:20-21, ¶ 2. When ADC's legal services section receives any "new summons[es] or complaints[, ]" Ms. Perez "enters the information in a central database to keep track of these matters[.]" Id. at 5:22-23, ¶ 3. That information is then "forward[ed]... to the appropriate party to respond, typically the Arizona Attorney General's Office." Id. at 5:24-25, ¶ 3. After searching the "lawsuit database[, ]" Ms. Perez declares that there is "no record of" ADC's legal services section "having received this lawsuit, ..., from any source prior to June 18, 2013."[5] Id. at 6:1-3, ¶ 4. Based upon the foregoing, defendant Barcklay argues that she is entitled to have the entry of default against her set aside as Rule 55(c) permits. The court will address this defense motion first because if she prevails, the plaintiff's motions for entry of default judgment will be rendered moot.

I. Setting Aside Entry of Default

Rule 59(c) allows a court to set aside an entry of default by the Clerk of the Court "for good cause[.]" Fed.R.Civ.P. 59(c). "To determine good cause, ' a court must consider three factors: (1) whether [the party seeking to set aside the default] engaged in culpable conduct that led to the default; (2) whether [it] had [no] meritorious defense; or (3) whether reopening the default judgment would prejudice' the other party." United States v. Signed Personal Check No. 730 of Yubran S. Mesle , 615 F.3d 1085, 1091 (9th Cir. 2010) (quoting Franchise Holding II, 375 F.3d at 925-26). These factors, originating from Falk v. Allen , 739 F.2d 461 (9th Cir. 1984), "are disjunctive, such that a court may decline to vacate an entry of default upon a finding of any of the factors." See Comercializadora Recmaq v. Hollywood Auto Mall, LLC, 2013 WL 494476, at *2 (S.D.Cal. Feb. 6, 2013) (citing Brandt v. Am. Bankers Ins. Co. of Fla. , 653 F.3d 1108, 1091 (9th Cir. 2011)) (other citation omitted). "Nonetheless, a district court is not, as a matter of law, required to deny a motion to set aside entry of default upon a finding of any of the factors." Id . (citing Brandt , 653 F.3d at 1111). By the same token though, "where timely relief is sought from a default and the movant has a meritorious defense, doubt, if any should be resolved in favor of the motion to set aside the default so that cases may be decided on their merits." O'Connor v. Nevada , 27 F.3d 357, 364 (9th Cir. 1994) (internal quotation marks and citation omitted).

Significantly, the Falk factors are "more liberally applied" where, as here, a party is seeking to set aside an entry of default pursuant to Rule 55(c). See Mesle , 615 F.3d at 1091 n. 1 (quoting Cracco v. Vitran Exp., Inc. , 559 F.3d 625, 631 (7th Cir. 2009) (quotations and citations omitted)). "This is because in the Rule 55 context there is no interest in the finality of the judgment with which to contend." Id . (citing Hawaii Carpenters' Trust Funds v. Stone , 794 F.2d 508, 513 (9th Cir. 1986)). Keeping with its "oft stated commitment to deciding cases on the merits whenever possible[, ]" the Ninth Circuit in Mesle reiterated that "judgment by default is a drastic step appropriate only in extreme circumstances[.]'" Id. at 1091 (quoting Falk v. Allen , 739 F.2d 461, 463 (9th Cir. 1984)) (other citations omitted). Mindful of the foregoing, along with "the fact that a district court's discretion is especially broad when, as in this case, it is entry of default that is being set aside, rather than a default judgment, " the court will discuss in turn each of the three Falk "good cause" factors enumerated above. See Brady v. United States , 211 F.3d 499, 504 (9th Cir. 2000) (internal quotation marks and citation omitted). In so doing, the court also bears in mind that the burden is on defendant Barcklay, as "[t]he party seeking to vacate the entry of default" to ...


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