Spikes v. ABU Noah Investments, LLC

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 KAREL SPIKES, Case No. 19-cv-01672-BAS-WVG 12 Plaintiff, ORDER SETTING ASIDE ENTRY OF DEFAULT AS TO DEFENDANT ABU 13 v. NOAH INVESTMENTS, LLC 14 ABU NOAH INVESTMENTS, LLC, et al., — 15 — Defendants. — 16 — 17 Plaintiff filed a First Amended Complaint (“FAC”) in this action on September 18, 18 2019. (ECF No. 3.) Plaintiff attempted to move for entry of clerk default against Defendant 19 ABU Noah Investments, LLC on November 19, 2019, which was denied by the Court 20 because Plaintiff did not demonstrate that the FAC had been served on Defendant. (ECF 21 Nos. 5, 6.) 22 On January 23, 2020, Plaintiff filed an executed summons indicating that the FAC had 23 been served on ABU Noah Investments via substituted service under Cal. Civ. Proc. § 24 415.20(a); the summons and FAC had been left with the person in charge on January 15, 25 2020, and the papers were mailed on January 16, 2020 by first-class mail, postage prepaid 26 to the person to be served. (ECF No. 9.) Service was therefore completed on January 26, 27 2020. See Fed. R. Civ. P. 4(e)(1), 4(h)(1)(A) (plaintiff may serve an individual by any 28 means authorized by the law of the state in which the district court sits, and service of most 1 || businesses by the same means); Cal. Civ. Proc. Code § 415.20 (a) (substituted service or 2 ||corporate entities deemed complete on the 10th day after mailing); see also Cucci v. 3 || Edwards, 510 F. Supp. 2d 479, 483 (C.D. Cal. 2007) (finding service complete against 4 ||joined defendant 10 days after mailing of summons and complaint to defendant’s agen 5 |}under § 415.20(a)). Defendant ABU Noah Investments was therefore required to file < 6 ||response to the FAC by February 18, 2020. See Fed. R. Civ. P. 12(a)(1) (a defendant must 7 ||answer a complaint within 21 days after being served); Fed. R. Civ. P. 6(a)(1)(C). Plaintiff 8 || however, requested entry of default against both Defendants ABU Noah Investments anc 9 || 123 Broadway, LLC on February 11, 2020. (ECF No. 11.) 10 Entry of default is appropriate as to any party against whom a judgment for affirmative 11 relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules 12 Civil Procedure and where that failure is shown by affidavit or otherwise. See Fed. R 13 P. 55 (a). Courts have the authority to set aside sua sponte an entry of default for gooc 14 ||cause. See Investcorp Retirement Specialist, Inc. v. Ohno, Civ. No. 07-1304, 2007 WL 15 || 2462122, at *2 (N.D. Cal. Aug. 28, 2007). “The court’s discretion is especially broad where 16 ||... itis entry of default that is being set aside, rather than a default judgment.” O’Connor 17 || v. State of Nevada, 27 F.3d 357, 364 (9th Cir. 1994) (quoting Mendoza v. Wight Vineyare 18 || Mgmt., 783 F.2d 941 , 945 (9th Cir. 1986)). 19 The Court finds that entry of default by the Clerk was premature because Plaintifi 20 requested entry of default six days before ABU Noah Investment’s 21-day time period tc 21 ||respond had expired. See Ennova Research SRL v. BeeBell Inc., No. 16-CV-05114-KAW. 22 WL 1739154 , at *4 (N.D. Cal. May 4, 2017) (holding that the time allowed by law 23 ||for responding to a complaint must expire before default can be entered). Good cause 24 || appearing, the Court therefore SETS ASIDE entry of default in this case as to Defendant 25 || ABU Noah Investments. Plaintiff may renew the request for entry of default as to ABL 26 || Noah Investments if the entity fails to timely respond to the FAC. 27 IT IS SO ORDERED. ) □□ 28 || DATED: February 18, 2020 (y i A A (Lushan. 6 9. sited Vinten District Judge