In Re Complaint and Petition of Brian Mackey

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 IN RE: COMPLAINT AND PETITION Case No.: 3:23-cv-00337-JAH-MSB OF BRIAN MACKEY AS OWNER OF [12] A CERTAIN 1990 TRIUMPH BOATS ORDER: 13 150, 18 FOR EXONERATION OR LIMITATION OF LIABILITY (1) GRANTING VANESSA [14] CARRENO’S MOTION FOR 15 RECONSIDERATION, (ECF No. 15); [16] (2) DENYING VERONICA 17 CARRENO’S MOTION FOR RECONSIDERATION, (ECF No. 16); [18] 19 (3) DENYING JAYCOB NUNGARAY’S MOTION FOR [20] RECONSIDERATION, (ECF No. 17); [21] (4) DENYING JUAN DAVID [22] NUNGARAY’S MOTION FOR 23 RECONSIDERATION, (ECF No. 18). 24 I. INTRODUCTION 25 On July 19, 2024, Vanessa Carreno, Veronica Carreno, Jaycob Nungaray, and Juan 26 David Nungaray (collectively, “Movants”) filed respective Motions for Reconsideration 27 (ECF Nos. 15, 16, 17, 18, collectively, “Motions”) seeking relief from the Court’s Order 28 Granting Petitioner’s Motion for Permanent Injunction, which barred all future claims 1 pertaining to a maritime collision under the Limitation of Shipowner’s Liability Act, (ECF 2 No. 11), and from the subsequent Entry of Default, (ECF No. 12). A Joint Motion for 3 Extension of Time to file a response and reply was granted on September 3, 2024. ECF 4 No. 21. Plaintiff-in-Limitation Brian Mackey (“Mackey” or “Petitioner” or “Plaintiff-in5 Limitation”) filed an omnibus Response in Opposition to the aforementioned Motions on 6 September 13, 2024. ECF No. 22 (“Opp’n”). Movants subsequently filed a consolidated 7 Reply. ECF No. 23 (“Reply”). 8 II. BACKGROUND 9 On February 21, 2023, Mackey, as owner of a 1990 TRIUMPH BOATS 150, 18 10 (“Vessel”), commenced this action pursuant to the Limitation of Shipowners’ Liability Act, 11 46 U.S.C. 30501, et seq., (“LOLA”) and Rule F of the Supplemental Rules for Admiralty 12 or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure 13 (“Supplemental Admiralty Rule F”). ECF No. 1 (“Compl.”). Mackey sought exoneration 14 from, or limitation of liability for, all claims arising out of a collision that occurred on or 15 about May 21, 2022, on navigable waters of the United States on the Colorado River north 16 of the I-10 freeway. Id. H.N. (“Decedent”)1 was the sole occupant and operator of a jet 17 ski that collided with Mackey’s vessel, resulting in Decedent’s death. Opp’n at 6.2 18 On March 28, 2023, pursuant to Supplemental Admiralty Rule F(4), the Court 19 ordered notice, or monition, be published in a local newspaper of general circulation (the 20 Palo Verde Times) published in the City of Blythe for four consecutive weeks. ECF No. 21 7 at 3. The Court also ordered that notice be mailed to every person known to have made 22 any claim against the Vessel or Mackey arising out of the collision, and that notice be [26] 1 On information and belief Decedent was a minor at the time of her death, her name has 27 been redacted as required by law. 2 Unless otherwise stated, page numbers referenced herein refer to page numbers generated [28] 1 mailed to Decedent’s last known address and anyone known to have made a claim on 2 account of such death. Id. 3 Pursuant to the Court’s order, Mackey published notice in the Palo Verde Times on 4 April 5, 12, 19, and 26 of 2023. ECF No. 10-1 (“Application”) at 2. Mackey also sent 5 notice by Certified Mail to the Omega Law Group, which Mackey described as “counsel 6 for potential respondents.” Id. Additionally, notice was sent to Decedent’s last known 7 address, but USPS confirmed “the mail was not accepted.” Id. at 3. Mackey waited until 8 June 30 to move for a permanent injunction, well-after the May 5 deadline the Court had 9 set for potential claimants to respond, and still there was no claim. Id. On July 11, 2023, 10 pursuant to LOLA and Supplemental Admiralty Rule F(5), the Court granted Mackey’s 11 Application for a permanent injunction. See ECF No. 11. Shortly thereafter, the Clerk of 12 Court filed an Entry of Default on July 19, 2023. See ECF No. 12. 13 Exactly one year later, on July 19, 2024, Movants filed their Motions asking the 14 Court to reconsider its Order Granting Permanent Injunction and to set aside the Entry of 15 Default. From the Movants’ briefing, the Court learned Decedent’s mother, Veronica 16 Carreno (hereinafter, “Veronica”), hired the Omega Law Group on June 22, 2022, to 17 represent her in bringing a claim for the wrongful death of her daughter. ECF No. 16-1 18 (“Veronica Decl.”) ¶ 2. At some point during the representation, Mackey’s insurer of the 19 Vessel presented a $300,000 policy limit to resolve Veronica’s claim, along with any 20 claims from her other family members. Id. ¶ 3. Prior to executing a release of liability, 21 Mackey filed the instant action. Id. ¶ 4. However, Omega Law Group never provided 22 Veronica with a copy of the notice, nor informed or counseled her about the limitation 23 action. Id. ¶¶ 5-9. More than six months after the Court granted Mackey’s Application 24 and the Entry of Default was made, the Omega Law Group sent Veronica a disengagement 25 letter on February 6, 2024. Id. ¶ 11. It was not until a later phone call with Mackey’s 26 insurance adjuster that Veronica learned of the limitation action. Id. ¶ 16. [28] 1 Vanessa Carreno (hereinafter, “Vanessa”) is the mother of Decedent’s minor cousin, 2 M.A.3 ECF No. 15-1 (“Veronica Decl.”) ¶ 1. M.A. was riding a jet ski in close proximity 3 to her cousin when she witnessed the collision that resulted in her cousin’s death. Id. ¶¶ 4 1-3. Similarly, Decedent’s brother, Jaycob Nungaray (hereinafter, “Jaycob”), was also 5 riding a jet ski near the collision. ECF No. 17-1 (“Jaycob Decl.”) ¶¶ 1-3. Juan David 6 Nungaray (hereinafter, “Juan David”) is Decedent’s father. ECF No. 18-1 (“Juan David 7 Decl.”) ¶¶ 1-4. Vanessa, Jaycob, and Juan David all claim they did not receive notice of 8 the limitation action. See Vanessa Decl. ¶¶ 5-7; Jaycob Decl. ¶¶ 5-7; Juan David Decl. ¶¶ 9 2-7. After learning of the action and the Court’s Order of Permanent Injunction barring 10 future prosecution against Mackey for this incident, Movants filed their respective 11 Motions, challenging the Injunction and the Entry of Default. 12 III. STANDING 13 As a threshold issue, Mackey asserts Movants lack standing to file their Motions 14 because they are not “parties” to the case. Opp’n at 9. Mackey argues the relief available 15 under Rule 60(b) is reserved for “parties” because its plain language instructs: “the court 16 may relieve a party or its legal representative from a final judgment, order, or 17 proceeding[.]” FED.R.CIV.P. 60(b) (emphasis added). In support, Mackey highlights the 18 Ninth Circuit’s holding from In re Lovitt that the plain language of Rule 60(b) provides its 19 mechanism for relief is only available to “parties.” 757 F.2d 1035 , 1040 (9th Cir. 1985) 20 (explaining “[b]ecause appellees were not parties to the ex parte proceedings … 21 Fed.R.Civ.P. 60(b) does not govern their motion to vacate the … court’s order”). However, 22 In re Lovitt deals with a creditor filing a motion for reconsideration of an order vacating 23 the sale of certain assets to the creditor in a bankruptcy proceeding; it does not consider 24 Rule 60(b)’s application to potential claimants in a LOLA limitation action, who would 25 otherwise have no recourse. Id. at 1037-38. [27] 3 On information and belief M.A. was a minor at the time of the incident and the time her [28] 1 Mackey also cites to Texas Gulf Sulphur Co. v. Black Stack Towing Co., 313 F.2d 2 359 (5th Cir. 1963), to assert that “Supplemental Rule F (4) provides a singular remedy for 3 late filed claims – the court may extend the time for filing claims only so long as the 4 limitation proceeding is pending and undetermined.” Opp’n at 14 (emphasis in original). 5 Mackey contends Rules 55 and 60 contradict Supplemental Admiralty Rule F by extending 6 the motion period beyond when the action is “pending and undetermined,” and Rules 55 7 and 60 are unavailable to Movants because of the conflict. Id. However, in making this 8 argument, Mackey ignores the far more recent Fifth Circuit holding in In re Matter of 9 GATX Third Aircraft Corp., 858 Fed.Appx. 692 (5th Cir. 2021) (“GATX”), where a Rule 10 60(b) motion challenging default judgment in a LOLA limitation action was upheld after a 11 standing challenge. 12 In GATX, as here, the shipowner sought exoneration from or limitation of liability, 13 and (after several parties came forward and their claims were settled) a joint order of 14 dismissal was granted. Id. at 692-93. Three potential claimants—who failed to file claims 15 during the monition period—attempted to file lawsuits after the order of dismissal, 16 claiming they were entitled to direct notice pursuant to Supplemental Admiralty Rule F(4). 17 Id. at 693. Eventually, the potential claimants filed a motion for relief from final judgment 18 pursuant to Rule 60(b), but the shipowner (like Mackey) argued they lacked standing to 19 bring such a motion because the potential claimants were not “parties” to the limitation 20 action. Id. The Fifth Circuit reasoned: [21] [B]ut for their delay, the Claimants could have been parties to the action. 22 Importantly, they have a close connection to the underlying case and 23 interests that are strongly affected by it. Dunlop v. Pan Am. World Airways, Inc., 672 F.2d 1044 , 1052 (2d Cir. 1982) (finding that some 24 parties are “sufficiently connected and identified with” an underlying 25 suit “to entitle them to standing to invoke” Rule 60(b)). In this unusual situation, although the Claimants were not parties to the Limitation 26 Action, we conclude they have standing to file the Rule 60(b) motion. [28] 1 GATX, 858 Fed.Appx. at 693. While the Ninth Circuit has yet to provide guidance as to 2 what remedies are available for potential claimants who did not receive notice during the 3 monition period of a LOLA action, district courts within the Circuit have heard motions 4 challenging a final judgment from non-parties in similar cases under Rules 55 and 60. See, 5 e.g., Matter of Redondo Special, LLC, 699 F.Supp.3d 893 , 898 (C.D. Cal. 2023) 6 (entertaining a motion under Rules 55 and 60 from a would-be claimant challenging the 7 court’s default judgment against all non-appearing parties in favor of the plaintiff-in8 limitation); Ellington v. LS Brianna Martin for, et al., 2023 WL 4237330 , at *2-4 (D. Ariz. 9 June 28, 2023) (same). In light of district courts within the Ninth Circuit applying both 10 Rules 55 and 60 in LOLA actions, the Court is persuaded the reasoning applied to Rule 60 11 in GATX is similarly applicable to Rule 55. 12 Were the Court to agree with Mackey that Movants have no standing to seek a 13 remedy under Rules 55 and 60, individuals in Movants’ position would have no recourse 14 to challenge an improper default judgment. Victoria and Juan David are Decedent’s 15 parents. M.A. and Jaycob are related to Decedent and were present for the collision and 16 her death. Therefore, like in GATX, Movants here are “sufficiently connected and 17 identified” with this action such that they are entitled to standing to seek relief from an 18 Entry of Default under the remedies provided by the Federal Rules of Civil Procedure. 858 19 Fed.Appx. at 693. Accordingly, the Court finds Movants have standing, and their Motions 20 should be considered on the merits. 21 IV. LEGAL STANDARD 22 Under Rule 60(b), a district court may reconsider a final judgment if it finds: “(1) 23 mistake, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) a void 24 judgment; (5) a satisfied or discharged judgment; or (6) extraordinary circumstances which 25 would justify relief.” School Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 26 1255, 1263 (9th Cir. 1993); FED.R.CIV.P. 60(b). Rule 60(b)(4) expressly provides for relief 27 from a final judgment when that judgment is void, though a judgment is only “void” when 28 it “is premised either on a certain type of jurisdictional error or on a violation of due process 1 that deprives a party of notice or the opportunity to be heard.” United Student Aid Funds, 2 Inc. v. Espinosa, 559 U.S. 260, 271 (2010). 3 Rule 60(b) is “remedial in nature and … must be liberally applied.” Falk v. Allen, [4] 739 F.2d 461, 463 (9th Cir. 1984). Specifically, when Rule 60(b) is used to challenge a 5 default judgment, the court should consider that such judgments are “appropriate only in 6 extreme circumstances; a case should, whenever possible, be decided on the merits.” Id. 7 In other words, when the judgment is not based on the merits (such as a default judgment), 8 “appropriate exercise of the district court’s discretion under Rule 60(b) requires that the 9 finality interest should give way fairly readily, to further the competing interest in reaching 10 the merits of a dispute.” TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691 , 696 (9th Cir. 11 2001), as amended on denial of reh’g and reh’g en banc (May 9, 2001). 12 The Ninth Circuit has held the same “good cause” standard that applies when default 13 judgments are challenged under Rule 55(c) also applies under Rule 60(b). Id. The three 14 factors employed to determine whether good cause exists to vacate a default judgment 15 (commonly referred to as the “Falk factors”) are: (1) whether the non-moving party will 16 be prejudiced, (2) whether the moving party has a “meritorious” case, and (3) whether 17 “culpable conduct” of the moving party led to the default. Falk, 739 F.2d at 463 . This 18 standard is disjunctive, and therefore, the district court may refuse to vacate a default 19 judgment upon a finding of any one of these factors. United States v. Signed Personal 20 Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010). Finally, the 21 moving party bears the burden of showing these factors favor setting aside the default. See 22 Franchise Holding II, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922 , 926 (9th 23 Cir. 2004). 24 V. DISCUSSION 25 Movants ask the Court to reconsider its Order for Permanent Injunction and to set 26 aside the Entry of Default, alleging they did not receive proper notice of the limitation 27 action under the requirements set forth in LOLA and Supplemental Admiralty Rule F(4). 28 Congress passed LOLA in 1851 to “encourage ship-building and to induce capitalists to 1 invest money in this branch of the industry.” Lewis v. Lewis & Clark Marine, Inc., 531 2 U.S. 438, 446-47 (2001). LOLA seeks to accomplish this by providing “a concourse for 3 the determination of liability arising out of marine casualties where asserted claims exceed 4 the value of the vessel, so that there can be an effective marshaling of assets.” Anderson 5 v. Nadon, 360 F.2d 53, 57 (9th Cir. 1966). As an incentive, LOLA provides a means for 6 shipowners to “limit their liability (if any) to their interest in the vessel and its freight, 7 provided that the loss was incurred without their privity or knowledge.” In re Complaint 8 of Ross Island Sand & Gravel, 226 F.3d 1015 , 1017 (9th Cir. 2000).4 9 After a plaintiff-in-limitation has met the LOLA requirements for limitation, “the 10 district court will issue notice requiring all persons who have claims arising out of the same 11 accident to assert them in the district court.” Matter of Willamette Jet Boat Excursions, 12 LLC, 638 F.Supp.3d 1209 , 1211-12 (D. Or. 2022). The shipowner must then petition the 13 court to issue a notice to “all persons asserting claims with respect to which the complaint 14 seeks limitation,” requiring them to file any claims before a date named on the notice, not 15 to be less than 30 days after the issuance of the notice. Supplemental Admiralty Rule F(4). 16 There are several requirements outlined for notice to be proper: [17] The notice shall be published in such newspaper or newspapers as the 18 court may direct once a week for four successive weeks prior to the date 19 fixed for the filing of claims. The plaintiff not later than the day of second publication shall also mail a copy of the notice to every person 20 known to have made any claim against the vessel or the plaintiff arising 21 out of the voyage or trip on which the claims sought to be limited arose. In cases involving death a copy of such notice shall be mailed to the [24] 4 The Ninth Circuit has questioned LOLA’s utility, colorfully referring to it as “a relic of 25 an earlier era,” “misshapen from the start,” and “arthritic with age.” Esta Later Charters, Inc. v. Ignacio, 875 F.2d 234, 239 (9th Cir. 1989) (observing, “[w]ith the availability of [26] incorporation, insurance and other devices to protect shipowners against major disasters, 27 the Liability Act seems oddly out of place in the modern economy”). Nevertheless, LOLA remains in effect, and it is up to Congress—not the Judiciary—to repeal or amend it. See [28] 1 decedent at the decedent’s last known address, and also to any person who shall be known to have made any claim on account of such death. [2] 3 Supplemental Admiralty Rule F(4). Notice should be sent to a claimant’s attorney, or if 4 the claimant does not have an attorney, to the claimant. Supplemental Admiralty Rule 5 F(6). “Where a monition and publication is made according to the rules and practice in 6 admiralty proceedings, it becomes notice to all persons having any claims, whether they 7 receive actual notice thereof or not, and, if they fail to appear within the time designated, 8 they are liable to lose the opportunity of presenting their claims in that proceeding or in 9 any other[.]” Dowdell v. United States Dist. Court for the N. Dist. of California, 139 F. 10 444, 446 (9th Cir. 1905) (internal quotation omitted) (emphasis added). After the notice 11 requirements have been satisfied and the date on the notice has elapsed, the plaintiff-in12 limitation may move to “enjoin the further prosecution of any action or proceeding against 13 the plaintiff’s property with respect to any claim subject to limitation in the action.” 14 Supplemental Admiralty Rule F(3). 15 A. Statute of Limitations for Wrongful Death and Negligence Claims 16 In considering whether the Injunction and Entry of Default were proper under 17 LOLA, the Court first addresses the statute of limitations for Movants’ potential claims, as 18 it is dispositive of several motions in this case. The Court looks for whether good cause 19 exists when determining whether to exercise its discretion to vacate the Entry of Default. 20 TCI Grp. Life Ins. Plan, 244 F.3d at 696. It is Movants’ burden to demonstrate good cause 21 exists. Franchise Holding II, LLC, 375 F.3d at 926. The Court may refuse to vacate the 22 Entry of Default upon a finding of any one of the Falk factors, including whether Movants 23 have a meritorious case. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d at 24 1091. 25 A California state law claim for the death of an individual caused by a wrongful act 26 or negligence has a two-year statute of limitations. CAL. CIV. PROC. CODE § 335.1. 27 Similarly, negligent and intentional infliction of emotional distress claims are subject to 28 the same two-year statute of limitations. Van Osten v. Home Depot USA, Inc., 2023 WL 1 8888636, at *2 (9th Cir. Dec. 26, 2023). In most cases involving a death, the action will 2 accrue on the date of the death. See Ward v. Westinghouse Canada, Inc., 32 F.3d 1405 , 3 1407 (9th Cir. 1994). California does provide relief from the statute of limitations for 4 individuals who are unaware of the wrongful death and its negligent cause under the 5 delayed discovery rule. Id. However, Movants do not raise the delayed discovery rule as 6 a defense, nor is there anything in the briefing to indicate it would apply. To the contrary, 7 Vanessa’s minor child, M.A., and Jaycob were aware of the incident because they 8 witnessed it firsthand. 9 1. Victoria’s, Jaycob’s, and Juan David’s Potential Claims Are Time-Barred 10 In this case, the collision and Decedent’s death occurred on May 21, 2022. Opp’n 11 at 6. The two-year statute of limitations for a wrongful death claim against Mackey would 12 then expire two years later on May 21, 2024. Movants did not file their Motions in this 13 case until July 19, 2024, nearly two months after the statute of limitations had expired. See 14 Motions. While the Court does not purport actual knowledge of the statute of limitations 15 is required for its expiration to bar a subsequent claim, it is notable Victoria admits to being 16 advised of the statute of limitations by her counsel. See Victoria Decl. ¶ 13 (explaining, 17 “the Omega Law Group letter informed me that I had a two-year statute of limitations to 18 pursue a claim for the death of my daughter”). Furthermore, while not claiming to be 19 previously advised by Omega Law Group of the statute of limitations, Movants Vanessa, 20 Jaycob, and Juan David all acknowledge its existence in nearly identical statements in their 21 respective declarations. See ECF No. 15-1 (“Vanessa Decl.”) ¶ 9 (“Recently I found out 22 that this Court issued a ruling that invalidated the two-year statute of limitations”); see also 23 ECF No. 17-1 (“Jaycob Decl.”) ¶ 9 (same); ECF No. 18-1 (“Juan David Decl.”) ¶ 6 (same). 24 The Court finds Veronica, Jaycob, and Juan David have failed to meet their burden 25 of demonstrating a meritorious case because they failed to take any action until after the 26 statute of limitations had expired for their potential claims. Indeed, it is disingenuous to 27 suggest their alleged lack of notice of the limitation action amounts to good cause to set 28 aside default when, in fact, no Movant attempted to file a claim before the statute of 1 limitations expired. Accordingly, Veronica’s Motion, Jaycob’s Motion, and Juan David’s 2 Motion are DENIED. 3 2. Vanessa’s Potential Claims on Behalf of a Minor Are Not Time-Barred 4 While, like the other Movants, Vanessa failed to take any action within two years of 5 the incident, her Motion is distinct because she represents her minor child. Under 6 California law, when a person “entitled to bring an action” is under the age of majority, 7 “the time of the disability is not part of the time limited for the commencement of the 8 action.” CAL. CIV. PROC. CODE § 352(a). In other words, the statute of limitations does 9 not start running until a minor reaches the age of majority, beginning the day after the 10 minor’s eighteenth birthday. See Shalabi v. City of Fontana, 11 Cal.5th 842, 856 (2021). 11 Therefore, while Vanessa has not attempted to file a claim on behalf of her minor child, 12 the statute of limitations will not begin to run until that child reaches the age of majority. 13 Therefore, Vanessa’s Motion requires further consideration. 14 B. The Merits of Vanessa’s Case 15 The only cause of action specified by any Movant in the briefing is wrongful death. 16 See ECF No. 16 (“Veronica’s Mot.”) at 1. “A cause of action for wrongful death is a 17 statutory claim that compensates heirs of the decedent for losses suffered as a result of a 18 decedent’s death.” Brumley v. FDCC California, Inc., 156 Cal.App.4th 312, 324 (2007) 19 (emphasis added). Because Decedent’s parents are still alive, Vanessa’s daughter is not 20 Decedent’s heir and cannot bring a wrongful death claim. While Vanessa fails to 21 specifically identify what other claims she plans to bring on behalf of her minor daughter, 22 she alleges enough facts to demonstrate she may have a negligence claim. 23 California does not have an independent tort for negligent infliction of emotional 24 distress, rather a bystander who witnesses injury to a loved one, and experiences emotional 25 distress as a result, may sue under the traditional tort of negligence. Burgess v. Superior 26 Court, 2 Cal.4th 1064, 1072 (1992) (negligent infliction of emotional distress “is not an 27 independent tort, but the tort of negligence). A negligence action for infliction of emotional 28 distress requires that the plaintiff: “(1) is closely related to the injury victim; (2) is present 1 at the scene of the injury-producing event at the time it occurs and is then aware that it is 2 causing injury to the victim; and (3) as a result suffers serious emotional distress.” Thing 3 v. La Chusa, 48 Cal.3d 644, 667-68 . Vanessa alleges her minor daughter “was riding a jet 4 ski … when she witnessed her cousin H.N. be struck and killed by a boat.” Vanessa Decl. 5 ¶¶ 1-3. Based on these facts, Vanessa may have a negligence claim against Mackey on 6 behalf of her minor daughter. This having been demonstrated, the Court looks next to 7 whether the Default Judgment barring Vanessa from bringing such a claim was proper. 8 C. Default Judgment Against M.A. Was Improper Under Rule 55 9 Vanessa, on behalf of her minor child, M.A., argues the Default Judgment is void 10 against M.A. under Rule 55(b)(2) because M.A. is a minor who was not represented by a 11 general guardian, conservator, or fiduciary when default was entered. ECF No. 15 12 (“Vanessa’s Motion”) at 1-2.5 Mackey argues “there is no indication of a lack of the 13 Court’s jurisdiction or a due process issue or that Mackey knew that Movants other than 14 Veronica intended to file a claim.” Opp’n at 11-12. 15 Rule 55(b)(2) provides: “[a] default judgment may be entered against a minor … 16 only if represented by a general guardian, conservator, or other like fiduciary who has 17 appeared.” Other districts within this Circuit have vacated or refused to enter default 18 judgment against a minor in LOLA cases under Rule 55(b)(2). See Ellington, 2023 WL 19 4237330, at *4 (vacating default judgment against a minor, reasoning“[b]ecause an Entry 20 of Default against minors is expressly prohibited under the Federal Rules before their 21 guardian makes an appearance, this error affected Claimants’ due process rights under the 22 law”); see also Matter of Seabreeze JetLev, LLC, 2021 WL 7448618 , at *5 (N.D. Cal. Nov. 23 22, 2021) (recommending plaintiff-in-limitation’s request for default against a minor be [26] 27 5 Mackey argues Rule 55 does not “save” Vanessa’s Motion because Vanessa (and her minor child) were not “parties” to this action. Opp’n at 10. The Court is not persuaded by [28] 1 denied because no guardian, representative, or fiduciary had appeared on the minor’s 2 behalf). 3 Rule 60(b) vests authority in the Court to set aside a judgment if the judgment is 4 void. A judgment is not void simply because it was erroneous, but only if the court lacked 5 jurisdiction or acted in a manner inconsistent with due process. In re Center Wholesale, 6 Inc., 759 F.2d 1440, 1448 (9th Cir. 1985). If a judgment is void, “relief is not a 7 discretionary matter; it is mandatory.” Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 8 1994). Here, M.A. did not appear in this case and was not represented by a general 9 guardian, conservator, or fiduciary until after the Entry of Default. Therefore, the judgment 10 was inconsistent with M.A.’s due process rights as it directly contradicts the procedural 11 safeguard established for minors in Rule 55(b)(2). See Ellington, 2023 WL 4237330 , at 12 *4. Accordingly, under Rule 60(b)(4), the Court finds due process grounds exist to vacate 13 the Default Judgment as void. Therefore, Vanessa’s Motion for Reconsideration is 14 GRANTED. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 VI. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED: 3 1. Vanessa Carreno’s Motion for Reconsideration is hereby GRANTED (ECF No. 4 15), and the Court ORDERS: 5 a. The Permanent Injunction imposed by this Court on July 11, 2023, shall 6 be lifted as to Vanessa Carreno’s minor child, M.A. 7 b. The Clerk of Court is directed to amend the Default Judgment entered on 8 July 19, 2023, to exclude Vanessa Carreno’s minor child, M.A. 9 2. Victoria Carreno’s Motion for Reconsideration is DENIED. ECF No. 16. 10 3. Jaycob Nungaray’s Motion for Reconsideration is DENIED. ECF No. 17. 11 4. Juan David Nungaray’s Motion for Reconsideration is DENIED. ECF No. 18. 12 IT IS SO ORDERED. 13 |} DATED: December 20, 2024 15 OHN A. HOUSTON UNITED STATES DISTRICT JUDGE