United States District Court, W.D. Washington, Seattle
ORDER SETTING ASIDE THE DEFAULT AND DENYING MOTION
FOR DEFAULT JUDGMENT
L. ROBART United States District Judge
the court is Plaintiff George Johnson's motion for
default judgment against in personam Defendant
Donald P. Wang. (Mot. (Dkt. # 17).) Mr. Wang, who is
proceeding pro se, opposes Mr. Johnson's motion
for default judgment and requests that the court set aside
the default. (Resp. (Dkt. # 18).) The court has considered
the motion, Mr. Wang's response, Mr. Johnson's reply
in support of his motion (Reply (Dkt. # 19)), the relevant
portions of the record, and the applicable law. Being fully
advised,  the court SETS ASIDE the entry of default
and DENIES Mr. Johnson's motion for the reasons set forth
November 10, 2016, Mr. Johnson filed this lawsuit. (Compl.
(Dkt. # 1).) Mr. Johnson alleges that Mr. Wang failed to pay
him $7, 380.00 in wages for 492 hours of work and failed to
fulfill his promise to let Mr. Johnson master the F/V Thor-a
fishing vessel-during the tuna fishing season. (Id.
¶¶ 6, 8.) Mr. Johnson seeks the arrest,
condemnation, and sale of the F/V Thor; compensatory, double,
and punitive damages for the alleged failure to pay wages;
attorney's fees and costs; and prejudgment interest.
(See Id. ¶¶ 7-8.)
January 24, 2017, Mr. Johnson moved for entry of default
against Mr. Wang (MFD (Dkt. # 9) at 1) and filed a
declaration attesting that Mr. Wang was served on December
31, 2016 (see Merriam Decl. (Dkt. # 10) ¶ 2,
Ex. 1). Later that same day, attorney Thomas Waller appeared
on Mr. Wang's behalf. (Not. (Dkt. # 11).) On February 2,
2017, Mr. Waller moved to withdraw as Mr. Wang's attorney
(MTW (Dkt. # 12) at 1), and one week later, Mr. Wang filed an
answer pro se (Answer (Dkt. # 13)). The court
directed the Clerk to enter default because Mr. Wang failed
to defend against the action by the time Mr. Johnson moved
for entry of default. (2/10/17 Order at 4-5 (citing
Fed.R.Civ.P. 55(a)).) The Clerk entered default on February
24, 2017. (Default Order (Dkt. # 16).)
Johnson now moves for default judgment to recover the wages
he contends Mr. Wang failed to pay him and for his
attorney's fees and costs. (See Mot. at 1-2.) In
response, Mr. Wang moves to set aside the default and opposes
Mr. Johnson's motion for default judgment. (See
Resp. at 1-3.) The court first addresses Mr. Wang's
request to set aside the default, followed by Mr.
Johnson's motion for default judgment.
Motion to Set Aside Entry of the Default
55(c) provides that “[t]he court may set aside an entry
of default for good cause.” Fed.R.Civ.P. 55(c). Courts
in the Ninth Circuit evaluate whether a party has shown good
cause to set aside an entry of default by analyzing three
factors: (1) “whether the plaintiff will be prejudiced,
” (2) “whether the defendant has a meritorious
defense, ” and (3) “whether culpable conduct of
the defendant led to the default.” Brandt v. Am.
Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir.
2011) (internal quotation marks omitted). The party seeking
to set aside the default bears the burden of demonstrating
that the three factors favor setting aside default. See
TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 696
(9th Cir. 2001), overruled on other grounds by
Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141
(2001). However, the Ninth Circuit's “rules for
determining when a default should be set aside are solicitous
towards movants, ” particularly those movants who are
proceeding pro se. United States v. Signed Pers.
Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1089
(9th Cir. 2010); see also Id. at 1093 (noting
special solicitude for pro se plaintiffs who seek to
set aside a default). For this reason, a district court
should “resolve all doubt in favor of setting aside
the entry of default and deciding the case on its
merits.” O'Connor, 27 F.3d at 364.
aside the entry of default prejudices a plaintiff when it
hinders a plaintiff's ability to pursue his or her claim.
See TCI Grp. Life Ins., 244 F.3d at 701. The harm
must be greater than “simply delaying resolution of the
case, ” id., imposing “the ordinary cost
of litigating, ” id., or requiring the
plaintiff “to establish the merits of [his] claim,
” Aristocrat Techs., Inc. v. High Impact Design
& Entm't, 642 F.Supp.2d 1228, 1233 (D. Nev.
2009). Indeed, setting aside the default must cause a
plaintiff “tangible harm such as loss of evidence,
increased difficulties of discovery, or greater opportunity
for fraud or collusion.” TCI Grp. Life Ins.,
244 F.3d at 701 (quoting Thompson v. Am. Home Assur.
Co., 95 F.3d 429, 433-34 (6th Cir. 1996)).
court concludes that setting aside the entry of default will
not prejudice Mr. Johnson because any delay will not hinder
Mr. Johnson's ability to pursue his claims or impose any
costs beyond those inherent in litigating his case.
Id. Further, the action is still in the early stages
of litigation, and requiring Mr. Johnson to establish the
merits of his claims does not constitute prejudice. See
Aristocrat Techs., 642 F.Supp.2d at 1233. Finally, Mr.
Johnson's filings do not indicate any prejudice for the
purposes of setting aside the entry of default. (See
Mot.; Reply.) Accordingly, this factor favors setting aside