United States District Court, D. Arizona
Michael T. Liburdi United Slates District Judge
the Court is Defendant Salt River Pima-Maricopa Indian
Community's (the “Community”) 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.
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.
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.)
SETTING ASIDE DEFAULT JUDGMENT
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.
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.
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.
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
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.
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 ...