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Manuel v. Thomas

*fn* submitted: June 24, 1992.

MIKEL MANUEL, PLAINTIFF-APPELLANT,
v.
SPENCER THOMAS, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-91-0183-TEH. Thelton E. Henderson, Chief Judge, Presiding.

Before: Fletcher, Leavy, and T.g. Nelson, Circuit Judges.

MEMORANDUM

Mikel Manuel appeals pro se the district court's dismissal of his action for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Manuel alleged claims for redemption of property under 26 U.S.C. § 6337, civil rights violations under 42 U.S.C. §§ 1983 and 1988, violation of 18 U.S.C. § 876, and various state law torts. Manuel also appeals the district court's denial of his motion for default judgment against Spencer Thomas. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm.

Mikel Manuel was living on certain real property owned by his mother, Wilma Manuel. Manuel claims that he temporarily left the property on March 3, 1989. On March 15, 1989, the Internal Revenue Service sold the property by public auction to Spencer Thomas, the highest bidder. Thomas took possession of the property, and requested Mikel and Wilma Manuel remove personal property stored on the property, including several automobiles. The Manuels did not respond, and Thomas had the property towed. On June 26, 1989 Mikel Manuel recorded a mechanic's lien on the real property. Manuel filed this action on January 16, 1991.*fn1

I

Default Judgment

We review the denial of a default judgment under Fed. R. Civ. P. 55(b) for abuse of discretion. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). In denying a motion for default judgment, a district court may consider the sum of money at stake, the sufficiency of the complaint, the possibility of prejudice to the plaintiff, and the policy favoring Disposition of cases on their merits. See id. at 1471-72.

Here, the clerk entered Thomas's default on February 15, 1991. See Fed. R. Civ. P. 55(a). Manuel moved for entry of default judgment on February 20, 1991. Thomas filed a motion to dismiss on February 22, 1991. The district court denied Manuel's motion for entry of default judgment against Thomas. The district court concluded that a default judgment of $4,405,000 against Thomas would be exceedingly harsh, and that Manuel had failed to state any cognizable federal claims against Thomas. See Eitel, 782 F.2d at 1471-72. Further, Manuel failed to show any prejudice as a result of the delay in Thomas's responsive pleading, and the policy in favor of Dispositions on the merits weighs against entry of default judgment in this case. See id. Accordingly, we conclude that the district court did not abuse its discretion by denying Manuel's motion for default judgment. See id. at 1471.

II

Redemption Claim

Manuel brought a claim for redemption of the property pursuant to 26 U.S.C. § 6337. Section 6337 provides owners and others with an interest in property the right to redeem property sold at a tax sale within 180 days of the sale. 26 U.S.C. § 6337(b)(1), (2).*fn2 The district court dismissed Manuel's redemption claim on the grounds that Manuel did not have standing to bring the redemption claim and the claim was time-barred.

Section 6337 provides that property must be redeemed within 180 days after the sale by paying the purchaser the purchase price plus interest. 26 U.S.C. § 6337(b). Here, Manuel did not allege that he paid or attempted to pay the purchase price to Thomas or any IRS officer within 180 days. Because the action was filed more than 180 days after the sale of the property, any redemption right under section 6337 is time-barred. See 26 U.S.C. § 6337(b)(1). Accordingly, the district court correctly dismissed Manuel's claim for redemption.*fn3

III

Civil Rights ...


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