United States District Court, D. Oregon, Portland Division
Richard W. Todd, TODD & SHANNON, LLP Attorneys for
P. Morrison Timothy J. Fransen COSGRAVE VERGEER KESTER LLP
Attorneys for Defendant.
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
Reginald Berthiaume moves to set aside the order of default
entered against him on January 20, 2017, pursuant to Federal
Rule of Civil Procedure 55(c), alleging lack of proper
service as required by Federal Rule of Civil Procedure 4(e).
Def.'s Mot. Set Aside Order Default (“Def.'s
Mot.”) 1-2, ECF 22. I grant the motion.
2016, Plaintiff Michael Busher brought an action against
Defendant for Breach of Judgment, Defamation (Slander Per
Se), and Interference with Business Relationship. Compl. 1,
ECF 1. Plaintiff alleges he initially attempted to serve
Defendant personally at his residence in Florida. Pl.'s
Memo. Opp. Def.'s Mot. (“Pl.'s Opp.”) 5,
ECF 33. The process server was unable to speak with Defendant
and allegedly left a card with the “maid.”
Id. Subsequently, the process server made a few
attempts to meet with Defendant, all of which were
process server then attempted to serve Defendant at Tropical
Auto Sales & Rent to Own LLC, dba Tropical Auto Outlet
(“Tropical Auto”), his wife's business.
Def.'s Mot. 2; Pl.'s Resp. Def.'s Mot. Dismiss
Ex. 1, ECF 36. While Defendant had some limited contacts with
and briefly served on the board of Tropical Auto's
predecessor corporation, he alleges (and plaintiff does not
refute) that he has never worked for Tropical Auto.
Def.'s Mot. 2; see also Pl.'s Opp. 2-3;
Def.'s Reply 2-3, ECF 38. According to Defendant, the
server approached the manager on duty at the time, the
financial manager of Tropical Auto, and asked her to accept
service for Defendant. Decl. of Linda Leon ¶ 3, ECF 25.
Defendant alleges that the manager explained that Defendant
did not work at Tropical Auto and refused to accept service
for him. Def.'s Mot. 2. Despite this, the process server
left the service papers with the manager, allegedly informing
her that “this was only one of the ways they were
purporting to serve [D]efendant.” Id. The
process server later provided Plaintiff with an affidavit of
service, alleging that Defendant had been served “c/o
Tropical Auto” by delivering the summons and complaint
to “Jane Doe as Accountant.” Pl.'s Resp.
Def.'s Mot. Dismiss Ex. 1.
Plaintiff mailed copies of the summons and complaint both to
Defendant's address and the address of Defendant's
Florida lawyer. Def.'s Mot. 3; see also Decl. of
David Shannon (“Shannon Decl.”) Ex. A-E, ECF 7.
While there is some dispute over whether Defendant's
Florida lawyer solicited a waiver of service at this point or
Plaintiff sent one unsolicited, it is undisputed that neither
Defendant nor his Florida lawyer signed a waiver.
Compare Def.'s Mot. 3 with Pl.'s
January 17, 2017, Plaintiff filed a motion for entry of
default, alleging that Defendant had been served at Tropical
Auto. Def.'s Mot. 3; see also Shannon Decl. Ex.
A, B. The clerk entered the order of default three days
later, Order Granting Mot. Default Jan. 20, 2017, ECF 8, and
on May 15, 2017, Plaintiff moved for entry of a default
judgment, Pl.'s Mot. Default J., ECF 9. That motion is
currently pending before this Court.
this time Defendant learned that Plaintiff was seeking a
default judgment against him, and on June 12, 2017, Defendant
retained counsel to set over the default judgment hearing and
challenge the order of default against him. Decl. of Timothy
J. Fransen ¶ 2, ECF 26; Decl. of Reginald Berthiaume
¶ 4, ECF 23. Defendant's counsel contacted Plaintiff
on June 13 and 19, 2017, in regards to lack of service and
was told that Plaintiff would provide proof of proper
service. Id. at ¶ 3. On July 31, 2017, having
never received such proof, Defendant moved to set aside the
order of default, arguing that he was never served and thus
the order of default was void. Id. at ¶ 4-6.
Rule of Civil Procedure 55(c) provides that a court may set
aside an entry of default for “good cause.”
Fed.R.Civ.P. 55(c). The decision to set aside an entry of
default is left to the discretion of the district court.
See O'Connor v. Nevada, 27 F.3d 357, 364 (9th
Cir. 1994). “The court's discretion is especially
broad where . . . it is entry of default that is being set
aside, rather than a default judgment.” Mendoza v.
Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986).
considering whether to set aside an order of default, the
Ninth Circuit has directed courts to look to the grounds
established for vacating a default judgment. Haw.
Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513
(9th Cir. 1986). The Ninth Circuit also cautions that such
“grounds [for vacating a default judgment] are
liberally interpreted when used on a motion for relief from
an entry of default.” Id. “Where timely
relief is sought from a default . . . and the movant has a
meritorious defense, doubt, if any, should be resolved in
favor of the motion to set aside the [default] so that cases
may be decided on their merits.” Schwab v.
Bullock's Inc., 508 F.2d 353, 355 (9th Cir.1974)
(quoting 7 J. Moore, Moore's Federal Practice ¶
60.19, at 232-33) (internal quotations omitted).
judgment does not bind a person who has not been made a party
by service of process to that litigation. Yniguez v.
Arizona, 939 F.2d 727, 735 (9th Cir.1991) (citing
Hansberry v. Lee, 311 U.S. 32, 40 (1940)). A default
judgment is, therefore, void where a defendant is not
properly served. Mason v. Genisco Tech. Corp., 960
F.2d 849, 851 (9th Cir. 1992). Further, if a default judgment
would be rendered void for a lack of service, then a lack of
service surely meets the lower standard of ‘good
cause' required to set aside an order of default. See
I & U Inc. v. Publishers Sols. Int'l, No.
CV130018GAFAJWX, 2014 WL 12665733, at *4 (C.D. Cal. Apr. 21,
2014) (“[I]f a default judgment would be rendered void,
a mere entry of default must surely be ...