United States District Court, D. Arizona
ORDER AND OPINION [RE: MOTION AT DOCKET 19]
W. SEDWICK SENIOR JUDGE.
docket 17 the court entered a final default judgment in favor
of plaintiff Joe Hand Promotions, Inc.
(“Plaintiff”). At docket 19 defendants Juan
Valencia Manzo (“Manzo”), Luz Valencia
(“Valencia”), and Manzo Restaurants at Central,
LLC (collectively, “Defendants”) move pursuant to
Rules 55(c) and 60(b) for an order setting aside the
judgment. Plaintiff opposes at docket 22. Defendants reply at
docket 25. At docket 30 the court granted Plaintiff's
motion for leave to file a surreply, which Plaintiff filed at
argument was not requested and would not assist the court.
Fighting Championship 157: Ronda Rousey v. Liz
Carmouche” is a televised fighting program
(“the Program”) that aired in February 2013.
Plaintiff sued Defendants for showing the Program at their
restaurant without authorization, in violation of
Plaintiff's rights as the Program's exclusive
commercial domestic distributor.
7, 2015, Plaintiff submitted a request for entry of default
against all Defendants. This request was supported by proofs of
service from James Menona (“Menona”), a process
server who declared under penalty of perjury that on April 9,
2015, at around 12:20 pm he served a copy of the summons and
complaint on all three defendants at Valencia Produce, a
separate business that Manzo runs. Menona's declarations of
service are somewhat vague as to the manner of service.
Menona states that he served all three defendants “by
delivering [copies of the documents] to and leaving [them]
with” Manzo and Valencia personally. As for the manner
of service, Menona merely states: “in compliance with
the Federal Code [sic] of Civil Procedure.”
clerk's entry of default was issued,  Plaintiff moved
the court to enter a default judgment in its favor in the
amount of $23, 000. The court granted Plaintiff's motion
on June 11, 2015. Exactly one year later, on June 11, 2016,
Defendants filed the present motion to set aside the default
STANDARD OF REVIEW
55(c) states that a district court may set aside a final
default judgment under the “demanding standards set by
Rule 60(b).” Rule 60(b), in turn, states that the court
may relieve a party from a final judgment for six enumerated
reasons. Although determining whether to set aside a default
judgment is largely committed to the discretion of the
district courts,  that discretion is constrained by the
provisions of Rule 60(b).
60(b)(4) provides that the court may relieve a party from a
final judgment if the judgment is void. Defendants contend
that the default judgment entered against them is void
because they were not properly served with process. Where
service of process is not completed properly, the resulting
judgment is void because the court never acquired personal
jurisdiction over the bound party.
determining whether service was proper, “[a] signed
return of service constitutes prima facie evidence of valid
service which can be overcome only by strong and convincing
evidence.” Here, Plaintiff made a prima facie
showing that service of process was valid by submitting
Menona's declaration, in which he swears that he
personally served Manzo and Valencia with the summons and
complaint at Valencia Produce on April 9, 2015. Defendants
rebut Menona's ...