United States District Court, D. Arizona
Honorable Roslyn O. Silver Senior United States District
alleges that Defendants have interfered with receipt of his
mail and have been deliberately indifferent to a cockroach
infestation in his cell. While seven Defendants filed their
Answer on September 24, 2018 (Docs. 31, 37), Defendants
Curran and Quintero did not. Thereafter, Plaintiff sought and
received an entry of default (Doc. 45), which Defendants
Curran and Quintero move to set aside (Doc. 47). The
Magistrate Judge issued a report and recommendation that
their motion be granted, (Doc. 61), which this Court
“may accept, reject, or modify, in whole or in
part.” 28 U.S.C. § 636(b). Because Plaintiff filed
timely objections to the report and recommendation, (Doc.
63), this Court's review of the report and recommendation
must be de novo. 28 U.S.C. § 636(b).
argue that default should be set aside because the Arizona
Attorney General inadvertently failed to follow up to confirm
whether Curran and Quintero would accept the proposed joint
representation agreement (Doc. 47). As soon as defense
counsel realized that Curran and Quintero had not responded,
they obtained their consent to joint representation. The
Court may set aside an 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. United States v. Signed
Personal Check No. 730 of Yubran S. Mesle
(“Mesle”), 615 F.3d 1085, 1091 (9th Cir.
2010). “[J]udgment by default is a drastic step
appropriate only in extreme circumstances; a case should,
whenever possible, be decided on the merits.”
Id. at 1091.
defendant's conduct is culpable if he has received actual
or constructive notice of the filing of the action and
intentionally failed to answer.” Id. at
1092 (citation omitted) (emphasis in original). “[I]n
this context the term ‘intentionally' means that a
movant cannot be treated as culpable simply for having made a
conscious choice not to answer; rather, to treat a failure to
answer as culpable, the movant must have acted with bad
faith, such as an intention to take advantage of the opposing
party, interfere with judicial decision making, or otherwise
manipulate the legal process.” Id.
there is no basis to conclude that the failure to file an
answer was intentional and, instead, was an unintentional
oversight caused by “carelessness.” Although the
Court does not welcome careless conduct, those actions do not
amount to “bad faith [with] an intention to take
advantage of the opposing party, interfere with judicial
decision making, or otherwise manipulate the legal
process.” Mesle, 615 F.3d at 1091. This
factor, therefore, weighs in favor of setting aside default.
the Court considers whether Defendants have an available
“meritorious defense.” See Id. at 1094.
To establish that a meritorious defense exists, Defendants
must allege specific facts that would constitute a defense.
assert multiple potentially meritorious defenses: (1) that
they did not personally participate in any unconstitutional
conduct, (2) that Defendants are not responsible for
preventing Plaintiff from receiving his mail, and (3) that
Curran lacked subjective awareness of a risk to Plaintiffs
health in Count Six.
Prejudice to the Plaintiff
the Court considers whether setting aside the entry of
default would be prejudicial to Plaintiff “To be
prejudicial, the setting aside of a judgment must result in
greater harm than simply delaying resolution of the
case.” Id. at 1095 (citation omitted).
there is prejudice to Plaintiff The delay has been minimal,
and no evidence suggests that Plaintiffs ability to pursue
his claim will be hindered. This factor, therefore, also
weighs in favor of setting aside default.
the Court agrees the entry of default should be set aside,
the Report and Recommendation will be adopted,
Defendants' Motion to Set Aside Default will be granted,
and Defendants' lodged joinder to the remaining
Defendants' Answer will be filed.
IT IS ORDERED the December 6, 2018 Report
and Recommendation (Doc. 61) is ADOPTEDIT IS FURTHER ORDERED Defendants' Motion