United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Defendants' Motion to
Set Aside Entry of Judgment (Motion to Set Aside),
filed November 15, 2016. (Doc. 17). Pro se Plaintiff
responded to the Motion to Set Aside by filing (1) a Motion
to Strike the Defendants [sic] Motion to Set Aside Default
(Motion to Strike Motion to Set Aside) on November 22, 2016,
(2) Plaintiffs [sic] Motion for a Default Judgment (Motion
for Default Judgment) on November 22, 2016, and (3) a Motion
to Strike the Defendants [sic] Four Month Late Response to
the Plaintiffs [sic] Pleading (Motion to Strike Answer) on
December 8, 2016. (Docs. 25, 26, and 20). On December 23,
2016, Defendants replied to the Motion to Strike Answer
arguing that the Court should deny that motion and impose a
sanction of an award of attorney's fees against Plaintiff
for filing a frivolous motion. (Doc. 24).
filed this federal lawsuit on June 10, 2016. (Doc. 1).
Plaintiff is suing Emily Younger, a news anchor at KRQE-TV
News 13, and KRQE-TV News 13 for libel and slander and for
depriving him of his Sixth Amendment right to counsel in a
Drug Enforcement Administration asset forfeiture case. These
claims are based on a news story Defendant Younger broadcast
which allegedly represented that Plaintiff was jailed on drug
charges three days prior to the broadcast. Plaintiff contends
that this representation was untruthful.
on June 10, 2016, summonses were issued for Defendants and
Plaintiff mailed by priority express mail copies of the
summons and complaint to Defendants at Defendant KRQE-TV News
13's address. The copies of the summons and complaint
were delivered to the Defendant KRQE-TV News 13 address on
June 24, 2016. (Doc. 25) at 11 and 13. Plaintiff then filed
proofs of service on June 27, 2016. (Docs. 6 and 7).
According to the purported service date, Defendants had until
July 14, 2016, to answer the complaint. Id.
Defendants did not answer the complaint by July 14, 2016,
Plaintiff filed a Request for Clerk's Entry of Default
Judgment on October 11, 2016. (Doc. 11). Defendants'
attorney, Martin Esquivel, subsequently spoke with Plaintiff
on November 8, 2016, to explain that Plaintiff's service
of process did not comply with court rules. (Doc. 24) at 10,
¶ 3. According to Esquivel, Plaintiff agreed that it
would be “okay” for Esquivel to ask Defendants if
Esquivel could accept service of process on their behalf.
Id. Two days later, Esquivel emailed Plaintiff
stating that Defendants authorized him to accept service on
their behalf. Id. at 9. In addition, Esquivel stated
that he would file a response to the complaint within 20
days. Id. Consequently, on November 11, 2016,
Defendants filed a Notice of Acceptance of Service which
noted acceptance of service on November 8, 2016, and a
deadline of November 28, 2016, to file an answer to the
complaint. (Doc. 14).
the apparent agreement and the Notice of Acceptance of
Service, the Clerk entered defaults on November 15, 2016.
(Docs. 15 and 16). That same day, Esquivel notified Plaintiff
via email that per their agreement he filed a Notice of
Acceptance of Service on November 11, 2016. (Doc. 24) at 12.
Esquivel also noted that he called the Clerk regarding the
entry of defaults to explain that the parties had an
agreement regarding the service of process. Id.
Esquivel further indicated that he needed to file a motion to
set aside the entry of defaults based the parties'
agreement. Id. Finally, Esquivel informed Plaintiff
that he would send Plaintiff a copy of the motion to set
aside the entry of defaults so Plaintiff can either concur
with the motion or oppose it. Id. Not having
received a response from Plaintiff, Defendants filed the
Motion to Set Aside late in the afternoon of November 15,
2016. (Doc. 17).
later responded to Esquivel's November 15, 2016, email on
November 21, 2016, stating that they never had an agreement.
(Doc. 24) at 12. The next day, Plaintiff filed his
Motion to Strike Motion to Set Aside and the Motion for
Default Judgment. (Docs. 25 and 26).
in fact, filed an answer on November 28, 2016, as they said
they would in the Notice of Acceptance of Service. (Doc. 18).
Plaintiff then filed his Motion to Strike Answer on December
8, 2016. (Doc. 20).
December 13, 2016, Esquivel wrote a letter to Plaintiff to
give him an opportunity to withdraw the Motion to Strike
Motion to Set Aside, the Motion for Default Judgment, and the
Motion to Strike Answer. (Doc. 24) at 7. Esquivel explained
in the letter that service on Defendants was improper and
that Defendants could have filed a motion to dismiss for
improper service, but chose instead to agree to accept
service. Id. at 7-8. Esquivel also noted that
Plaintiff “reneged” on the acceptance of service
agreement in his November 21, 2016, email. Id. at 8.
Lastly, Esquivel stated that if Plaintiff does not withdraw
the above motions by December 15, 2016, he will seek
sanctions against Plaintiff in the form of an award of
attorney's fees. Id. Plaintiff did not withdraw
his motions, so Defendants filed their response to the Motion
to Strike Answer, which seeks an award of attorney's fees
as a sanction against Plaintiff.
Whether to Set Aside the Defaults
Fed.R.Civ.P. 55(c), a court may set aside an entry of default
for good cause. The principal factors in determining whether
a defendant has met the good cause standard include: (1)
whether the default was the result of culpable conduct of the
defendant; (2) whether the plaintiff would be prejudiced by
setting aside the default; and (3) whether the defendant
presents a meritorious defense. Pinson v. Equifax Credit
Info. Services, Inc., 316 F.App'x 744, 750 (10th
Cir. 2009) (setting forth factors for determining good cause
under Rule 55(c)). However, “even where there is a
meritorious defense and no prejudice to the adversary,
‘[w]illful failure alone may constitute sufficient
cause for the court to deny th[e] motion.'”
Guttman v. Silverberg, 167 F.App'x 1, 4 (10th
Cir. 2005) (quoting Dierschke v. O'Cheskey (In re
Dierschke, 975 F.2d 181, 184-5 (5th Cir.1992)).
Moreover, “[a] court need not consider all of the
factors, and may consider other factors as well.”
Id. “The defaulting party has the burden of
proving that the default … should be set aside.”
Nikwei v. Ross Sch. of Aviation, Inc., 822 F.2d 939,
941 (10th Cir. 1987).
good cause required for setting aside an entry of default
under Rule 55(c) “poses a lesser standard for the
defaulting party than the excusable neglect which must be
shown for relief from judgment under Fed.R.Civ.P.
60(b).” Dennis Garberg & Associates., Inc. v.
Pack-Tech Int'l Corp., 115 F.3d 767, 775 n.6 (10th
Cir. 1997). This lesser standard reflects the Court's
preference to dispose of cases on their merits and not
through default. Gomes v. Williams, 420 F.2d 1364,
1366 (10th Cir. 1970) (“The preferred disposition of
any case is upon its merits and not by default
judgment.”). Finally, “[s]etting aside a default
entry … is addressed to the sound discretion of the
trial court….” Nikwei, 822 F.2d at 941.
case, Defendants have presented evidence that the defaults
were not the result of culpable conduct by Defendants. First,
it appears that Plaintiff did not properly serve process on
Defendants by simply mailing copies of the summons and
complaint to Defendant KRQE-TV News 13's address.
See Fed. R. Civ. P. 4(e) (service of process on an
individual) and 4(h) (service of process on a corporation).
Second, notwithstanding possible issues with service of
process, Defendants were willing to have Esquivel accept
service on their behalf instead of filing a motion to dismiss
based on improper service of process. Third, pursuant to what
Defendants believed was an agreement with Plaintiff,
Defendants filed ...