United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO VACATE ORDER OF DEFAULT AND
DENYING RENEWED MOTION FOR DEFAULT JUDGMENT
L. ROBART United States District Judge
the court are: (1) Defendant East West Seafoods LLC's
("EWS") motion to vacate the order of default
entered against it (EWS Mot. (Dkt. # 24)); and (2) Plaintiff
Coastal Transportation, Inc.'s ("Coastal")
renewed motion for default judgment against EWS (Coastal Mot.
(Dkt. #21)). The court has considered the motions, the
materials filed in support of and in opposition thereto, and
the balance of the record. Being fully advised,
court GRANTS EWS's motion, ORDERS EWS's principal
Chris Tsabouris to pay $1, 000.00 to the court, and DENIES as
moot Coastal's renewed motion for default judgment.
BACKGROUND AND ANALYSIS
brings this action against EWS for an alleged failure to pay
for freight services. (Compl. (Dkt. # 1) ¶¶
4.1-4.5.) In its answer, EWS asserts various affirmative
defenses and brings a counterclaim, alleging that Coastal
wrongfully charged EWS's credit card without EWS's
authorization. (See Ans. (Dkt. # 6) ¶¶
January 17, 2018, EWS's former counsel, Harold Thoreen,
filed a motion to withdraw. (Mot. to Withdraw (Dkt. # 8);
see 1st Thoreen Decl. (Dkt. # 9) ¶¶ 3-4.)
The court granted the motion on January 26, 2018. (1/26/18
Order (Dkt. #11).) In its order, the court cautioned EWS
that, pursuant to Local Civil Rule 83.2(b)(4), if EWS failed
to obtain a replacement attorney within 30 days, the court
would enter default against EWS. (Id. at 2); see
also Local Rules W.D. Wash. LCR 83.2(b)(4). Mr. Thoreen
provided EWS with a copy of the court's order via email,
certified mail, and fax, (2d Thoreen Decl. (Dkt. # 12)
¶¶ 1-3, Exs. 1-2 (attaching email and fax
confirmation); 3rd Thoreen Decl. (Dkt. # 14) ¶ 1, Ex. 1
(attaching signed return receipt of certified mail).) No
replacement attorney appeared on EWS's behalf in the 30
days. (See Dkt.) Thus, the court entered default
against EWS and dismissed EWS's counterclaim against
Coastal. (3/13/18 Order (Dkt. #15) at 2-3.)
the court entered default against EWS, Coastal moved for
default judgment. (See 1st Mot. for DJ (Dkt. # 17).)
However, because Coastal did not provide sufficient
supporting evidence with its motion, the court denied its
motion without prejudice. (4/2/18 Order (Dkt. # 19) at 1-2.)
After the court's denial, a replacement attorney appeared
on EWS's behalf. (See Not. of Appear. (Dkt.
parties subsequently filed the two motions at issue. EWS,
through its replacement attorney, filed a motion to vacate
the order of default. (See EWS Mot.) Coastal filed a
renewed motion for default judgment. (See Coastal
Mot.) Coastal also filed an opposition to EWS's motion to
vacate, arguing that EWS's culpable conduct led to the
default. (See Resp. (Dkt. # 27.) at 1-3.)
explains that it "has now retained counsel" and
"understands that however it feels about the subject of
the litigation, it must go through the process to an ultimate
result." (EWS Mot. at 1.) EWS attaches the declaration
of its principal, Mr. Tsabouris, in which Mr. Tsabouris
explains that he "did not attend to this matter the way
[he] should have" due to his travels to Alaska.
(Tsabouris Deck (Dkt. # 25) ¶ 3.) Mr. Tsabouris also
stated that he "did not understand that it was necessary
to go through this process" because he believed that EWS
"had nothing to do with" the transaction at issue.
(Id. ¶ 5.) Mr. Tsabouris further asserts that
Mr. Thoreen "did not explain . .. that this process was
necessary." (Id.) However, Mr. Tsabouris states
that he has "now been lectured... regarding the
necessity of participating in the litigation process"
and am "prepared to go forward to a resolution of this
matter on the merits." (Id.)
order of default was predicated on EWS's lack of
representation (see 3/13/18 Order at 2-3), and
because EWS has now obtained new counsel and demonstrated an
understanding of the litigation process, the court finds good
cause to set aside the order of default, see Fed. R.
Civ. P. 55(c). Moreover, Coastal concedes that it cannot make
a showing of prejudice and that EWS appears to articulate a
meritorious defense. (Resp. at 2); see Johnson v.
Wang, No. C16-1738JLR, 2017 WL 1233101, at *2 (W.D.
Wash. Apr. 4, 2017). Accordingly, the court vacates the order
of default against EWS. Vacating the order of default
necessarily renders Coastal's pending motion for default
judgment moot, and the court denies it on that basis.
the court reprimands Mr. Tsabouris for failing to abide by
the court's orders. Mr. Tsabouris's unilateral-and
erroneous-decision that he "wanted to do nothing further
with" this matter prompted Coastal and the court to take
steps towards default judgment, which required time and
resources that are wasted now that Mr. Tsabouris has newly
discovered the importance of participating in litigation.
(See Tsabouris Decl. ¶ 5.) Accordingly, Mr.
Tsabouris must pay $1, 000.00 to the court for failing to
adhere to the court's orders and wasting judicial
regard, Mr. Tsabouris cannot shift the blame to Mr. Thoreen.
Mr. Thoreen filed numerous declarations documenting his
various attempts to inform Mr. Tsabouris of the court's
order and the consequences of not abiding. (See,
e.g., 2d Thoreen Decl.; 3rd Thoreen Decl.) Indeed, Mr.
Thoreen specifically drew Mr. Tsabouris's attention to
Local Civil Rule 83.2(b)(4), warning him that failure to
obtain replacement counsel would result in default. (1st
Thoreen Decl. ¶ 5; see also 2d Thoreen Decl.
¶ 1, Ex. 1 ("[I]f you fail to have a replacement
attorney appear on your behalf with in [sic] 30 days of the
date of the Order ... a default will be entered against
[EWS].").) Thus, Mr. Tsabouris's conduct is not
excused by Mr. Thoreen's conduct.
foregoing reasons, the court GRANTS EWS's motion to
vacate (Dkt. # 24) and DENIES Coastal's renewed motion
for default judgment (Dkt. #21). The court ORDERS Mr.
Tsabouris to pay $1, 000.00 to ...