Drake v. Salt River Pima-Maricopa Indian Community

          ORDER

          Michael T. Liburdi United Slates District Judge

         Before the Court is Defendant Salt River Pima-Maricopa Indian Community's (the “Community”)^[1] Motion to Set Aside Default. (Doc. 15). Also before the Court is the Community's Motion to Dismiss. (Doc. 14). The Motion to Dismiss rests on three bases: lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1), lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), and insufficient service of process under Fed.R.Civ.P. 12(b)(5). (Id. at 1).

         For the following reasons, the Court grants both the Motion to Set Aside Default under Rule 55(c) and the Motion to Dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction because of the Community's sovereign immunity from suit.

         I. BACKGROUND

         Nadia Drake is the Plaintiff. Her Complaint alleges that she suffers from severe anxiety, Post Traumatic Stress Disorder, and panic attacks. (Doc. 1, at 2.) Her service dog helps her cope. (Id.) Drake went with her service dog to the Community's Talking Stick Casino and Resort (the “Casino”) in July 2018. (Id.) She alleges that the Casino's employees told her that the service dog had to go - even when Drake and a companion tried to “retrieve their bags to provide [the dog]'s service credentials” to Casino staff. (Id.) Drake says that this confrontation with the Casino employees caused her to suffer a panic attack. (Id.) The Complaint goes on to allege that Casino employees (and thus the Casino itself under respondeat superior) violated Title III of the Americans with Disabilities Act (the “Act” or “Title III”), which deals with places of public accommodation. (Id. at 3-4); 42 U.S.C. §12182. Drake also claims that the Casino and its employees intentionally and negligently inflicted emotional distress upon her. (Doc. 1, at 4-5.)

         II. SETTING ASIDE DEFAULT JUDGMENT

         The Community contends that Plaintiff failed to make effective service of process under Fed.R.Civ.P. 4(m). (Doc. 15, at 1.) Plaintiff nonetheless sought an entry of default against it. (Doc. 11.) The Clerk of Court entered default on August 22, 2019. (Doc. 13.) The Community then filed a Motion to Set Aside Default against the Community on August 28, 2019. (Doc. 15.)

         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 three factors: (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 Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011). Although the party seeking to vacate judgment bears the burden of showing that these factors favor setting aside the default, that burden “is not extraordinarily heavy.” See United States v. Aguilar, 782 F.3d 1101, 1107 (9th Cir. 2015).

         A. Culpable Conduct

         “A defendant's conduct is culpable if he has received actual or constructive notice of the filing of the action and intentionally failed to answer.” TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001) (emphasis in the original), overruled on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001). Intentional conduct, in this context, must rise to the level of conduct which is willful, deliberate, or done in bad faith. Id. at 697-98. Thus, the behavior must be inexcusable.

         Here, the Court finds that the Community's behavior was not in bad faith. While it did have actual notice of the suit, the Community took the position that it had not yet been properly served. (Doc. 15, at 4-6.) Additionally, the Community asserts that it is immune from suit in this case. (Doc. 14, at 10-13.) The Community's conduct does not rise to the level of inexcusable, culpable conduct. This factor weighs in Defendant's favor.

         B. Meritorious Defenses

         To establish that a meritorious defense exists, a defendant has to allege specific facts that would constitute a defense. TCI Grp. Life Ins. Plan, 244 F.3d at 700. The Court need not conclude that the defendant will prevail on the alleged defense to determine that this factor weighs in favor of setting aside default. See Apache Nitrogen Products, Inc. v. Harbor Ins. Co., 145 F.R.D. 674, 682 (D. Ariz. 1993).

         The Community has raised a number of defenses in its Motion to Set Aside Default (Doc. 15) and its Motion to Dismiss (Doc. 14), including improper service and sovereign immunity. This is sufficient to weigh in the ...