Bevins #267562 v. Richardson et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ryan September Wednesday Bevins,
Plaintiff,
v.
Unknown Richardson, et al.,
Defendants.
No. CV-24-08061-PCT-JJT (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
Pro se Plaintiff Ryan September Wednesday Bevins (hereinafter “Plaintiff”) is an
inmate confined at the Arizona State Prison Complex—Eyman. (Doc. 1.) Pending before
the Court is Defendant Robert Alan Richardson’s Motion to Set Aside Default Judgment
[sic]1 (Doc. 22). For the reasons that follow, undersigned recommends2 the Motion be
granted and Defendant be permitted to file a responsive pleading to the Second Amended
Complaint (Doc. 10).
RELEVANT BACKGROUND
Plaintiff initiated the instant 42 U.S.C. § 1983 action on March 27, 2024. (Doc. 1.)
1 As will be discussed infra, judgment has not been entered in this case. Rather, an
entry of default (not default judgment) has. (Doc. 19.)
2 The District of Arizona has construed motions to set aside default as dispositive and
thus, without consent, outside of the jurisdiction of a magistrate judge as provided by 28
U.S.C. § 636(b). See, e.g., Sw. Heritage Bank v. Coury, No. CV-25-00047-PHX-JZB, 2025
WL 1908188, at *1 (D. Ariz. June 23, 2025), report and recommendation adopted, 2025
WL 1907549 (D. Ariz. July 10, 2025) (listing cases). Undersigned has been referred this
matter for pretrial proceedings (Doc. 11 at 11) and thus issues the instant Report and
Recommendation.
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After Plaintiff’s Original and First Amended Complaints were dismissed with leave to
amend by the Court (Docs. 6, 9), Plaintiff timely filed a Second Amended Complaint
against “Dr. Richardson, FNP Amy Lucero, FNP McDonald, and GEO Medical.” (Doc.
10.)
In its March 19, 2025 Screening Order, the Court ordered Defendants Lucero and
Richardson to respond to the Second Amended Complaint and directed Plaintiff to
complete and return the service packet to the Clerk of Court within twenty-one days. (Doc.
11.) Plaintiff timely returned the service packet on April 3, 2025, and the U.S. Marshals
Service attempted to serve the summons, notice, and Second Amended Complaint on
Defendants Lucero and Richardson. On April 30, 2025, the summons and Second
Amended Complaint for Defendant Lucero were returned as unexecuted, and Plaintiff filed
a Motion to Withdraw/Drop Defendant Lucero without Prejudice. (Doc. 12.) The Court
granted Plaintiff’s Motion (Doc. 24); thus, Defendant Richardson is the sole, remaining
defendant in this matter.
As to Defendant Richardson (hereinafter, “Defendant”), on May 29, 2025, the U.S.
Marshals Service confirmed that service of the summons, Second Amended Complaint,
and Order was executed through a third party, “HR Manager Dana Miner.” (Doc. 15.) On
August 18, 2025, having received no responsive pleading from Defendant or application
for default from Plaintiff, this Court issued an Order to Show Cause as to why the action
should not be dismissed for failure to prosecute. (Doc. 16.) Plaintiff then moved for entry
of default on August 26, 2025. (Docs. 17, 18.) The Clerk of Court entered default as to
“Unknown Richardson” on the same day, and the Court then set aside the Order to Show
Cause. (Docs. 19, 20). On October 2, 2025, Defendant filed the instant Motion to Set Aside
Default Judgment [sic]. (Doc. 22.) The Court notes, however, that default judgment has
not been entered in this case.3 Rather, the Clerk of Court entered a default against
3 Default and default judgment are two separate actions under Rule 55. Pursuant to
Rule 55, a plaintiff must first seek entry of default by the clerk prior to moving for default
judgment. Fed. R. Civ. P. 55(a). Once default has been entered against a party, the Court
has discretion to enter default judgment against that party. See Fed. R. Civ. P. 55(b)(2);
Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).
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Defendant (Doc. 19), and, prior to Plaintiff moving for default judgment, Defendant filed
the present Motion to set aside the Clerk’s entry of default. (Doc. 22.) Defendant uses
default and default judgment interchangeably in his Motion, but he frequently requests that
the Court set aside “the Entry of Default.” (See Doc. 22 at 1, 7.) Thus, undersigned will
consider whether to set aside default in the present Report and Recommendation.
In support of his Motion, Defendant Richardson provides a sworn declaration
stating he was not personally or properly served with Plaintiff’s Second Amended
Complaint. (Doc. 22-1 at ¶¶ 4-7.) Defendant further avers that “a copy of the summons . .
. was ‘left’ with an individual identified as ‘HR Dana Miner.’” (Id. at ¶ 5 (citing Doc. 15).)
Defendant states in his Declaration that he never gave Dana Miner authority or permission
to accept service on his behalf, and he never received a copy or was otherwise informed of
the lawsuit. (Id. at ¶¶ 6-7.) He did not receive knowledge of the lawsuit “until [his] attorney
of record advised [him] of such on September 28, 2025.” (Id. at ¶ 7.) Thus, Defendant
contends in his Motion that the default should be set aside because “proper service was not
made upon [him]” and “he has good cause for failing to answer or otherwise defend
himself.” (Doc. 22 at 1.) Defendant further asserts that he has meritorious defenses to
Plaintiff’s claims, “which fairness requires he be permitted to pursue.” (Id.) Defendant
requests that the entry of default be set aside, and that he be permitted to file an answer to
Plaintiff’s Complaint within fourteen days of any order setting aside default. (Id. at 7.)
Plaintiff did not file a response to Defendant’s Motion, and the time to respond has expired.
See LRCiv 7.2(c). Pursuant to LRCiv 7.2(i), Plaintiff’s lack of response may be deemed a
consent to the granting of the Motion. Nonetheless, undersigned considers the Motion’s
merits.
ANALYSIS
Defendant’s Motion is brought under Rule 55(c) of the Federal Rules of Civil
Procedure, which provides in relevant part: “The court may set aside an entry of default for
good cause.” While Defendant briefly discusses Plaintiff’s improper service, Defendant’s
Motion and argument focuses primarily on the good cause factors to set aside the default
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against him. (See Doc. 22.) Additionally, Defendant’s request to the Court is limited to
setting aside the entry of default and permitting Defendant to file a responsive pleading.
(See id. at 7.) Undersigned will address the arguments accordingly.
I. Legal Standard
“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) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d Cir. 1981)).
In U.S. v. Signed Pers. Check No. 730 of Yubran S. Mesle, the Ninth Circuit articulated the
standard for determining “good cause” under Rule 55(c). 615 F.3d 1085, 1091 (9th Cir.
2010). A court will assess whether “good cause” has been shown to set aside a default, by
considering three factors: (1) whether the party seeking to set aside the default engaged in
culpable conduct that led to the default; (2) whether the party seeking to set aside the default
had no meritorious defense; or (3) whether reopening the default judgment would prejudice
the other party. Id. (citing Franchise Holding II v. Huntington Rests. Grp., Inc., 375 F.3d
922, 925-26 (9th Cir. 2004)). “Although the burden rests on the moving party, the factors
are to be ‘liberally interpreted’ in favor of setting aside default.” FOC Fin. Ltd. P’ship v.
Nat’l City Com. Cap. Corp., 612 F. Supp. 2d 1080, 1082 (D. Ariz. 2009) (citing Haw.
Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986); Nilsson, Robbins,
Dalgarn, Berliner, Carson & Wurst v. La. Hyrdrolec, 854 F.2d 1538, 1546 (9th Cir. 1988)).
Courts generally have a strong preference towards adjudicating a case on the merits
and disfavor default judgments. See Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986)
(“Our starting point is the general rule that default judgments are ordinarily disfavored.
Cases should be decided upon their merits whenever reasonably possible.”) (citations
omitted); Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984) (“[J]udgment by default is a
drastic step appropriate only in extreme circumstances; a case should, whenever possible,
be decided on the merits.”); Schwab v. Bullock’s Inc., 508 F.2d 353, 355 (9th Cir. 1974)
(“[W]here timely relief is sought from a default judgment and the movant has a meritorious
defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment
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so that cases may be decided on their merits.”) (citations omitted). This preference towards
adjudication on the merits is applied both to entry of defaults as well as default judgments.
See, e.g., O’Connor v. State of Nev., 27 F.3d 357, 364 (9th Cir. 1994) (finding “the district
court properly resolved all doubt in favor of setting aside the entry of default and deciding
the case on its merits.”) (citing Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th
Cir. 1985)).
Courts have found that “[a] default judgment must be set aside if the court lacked
jurisdiction over the defendants due to insufficient service of process.” United States v.
4268 Los Angeles Ave. Simi Valley California 93063, 672 F. App’x 770, 770 (9th Cir.
2017) (citing Sec. & Exch. Comm’n v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1165
(9th Cir. 2007)). When a court has only entered a default, “[i]f service is improper, then
any default entered thereon is void[.]” Fayler v. Karau, 51 F. App’x 639, 641 (9th Cir.
2002) (citing Mason v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir. 1992)).
A. Service of Process
Defendant briefly argues within the “culpable conduct” prong of his good cause
analysis that he was not properly served. (See Doc. 22 at 2-3.) Importantly, Defendant does
not actually ask this Court to invalidate service; rather, he argues that because service was
improper, Defendant’s conduct was not culpable. (See id.) Undersigned will thus briefly
address below whether service on Defendant was proper.
Defendant argues that he was not personally served and that “leaving a [s]ummons
and Complaint intended for Defendant with an individual who had no authority to accept
service on his behalf does not constitute proper service under the Federal rules.” (Doc. 22
at 4.) Defendant continues, “[t]he US Marshals Service’s attempt to serve Defendant by
leaving a copy of the [s]ummons and Complaint with an HR employee located at the
Kingman facility was improper[.]” (Id.) In the Process Receipt and Return for Defendant,
the Deputy U.S. Marshal who effectuated service certified that they personally served HR
Manager Dana Miner on May 28, 2025 at 10:39 AM. (Doc. 15 at 1.) The Deputy indicated
that they “left the summons at the individual’s residence or usual place of abode” with
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Dana Miner. (Id. at 2.) Defendant asserts that the summons and Complaint were left with
an individual “at the Kingman facility identified as ‘HR Dana Miner.’” (Doc. 22 at 2.)
“Once service is challenged, plaintiffs bear the burden of establishing that service
was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (citations
omitted). The Federal Rules of Civil Procedure applicable in this case provide that service
is proper by either 1) following state law for serving a summons; or 2)(A) delivering a copy
of the summons and complaint to the individual personally; (B) leaving a copy of each at
the individual’s dwelling or usual place of abode with someone of suitable age and
discretion who resides there; or (C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process. Fed. R. Civ. P. 4(e). The state law
applicable for proper service in this matter is identical to the Federal Rules. See Ariz. R.
Civ. P. 4.1(d).
A person’s “abode,” defined similarly under federal and state law, refers to where a
party lives when service is attempted. See Melton v. Superior Ct. In & For Gila Cnty., 739
P.2d 1357, 1359 (Ariz. Ct. App. 1987) (finding that service on a party’s place of
employment was not sufficient under Ariz. R. Civ. P. 4.1(d)(1) because “‘place of abode’
is generally construed to mean the place where the person is living when service is
attempted”) (citing Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950)); see
also Stars’ Desert Inn Hotel & Country Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir.
1997) (upholding district court’s determination that service was proper pursuant to Fed. R.
Civ. P. 4(e)(2) because defendant “lived at the residence where service was effected.”).
Plaintiff, through the In Process Receipt and Return, indicates to the Court that he
properly effectuated service by leaving the summons and Complaint at Defendant’s
residence or usual place of abode with a person of suitable age and discretion who resides
there.4 (See Doc. 15.) However, the Deputy left the summons and Complaint at Defendant
Richardson’s place of work, not his residence. (See Docs. 15, 22.) Plaintiff does not allege,
nor is there any indication in the record, that Defendant lives at the “Kingman facility” or
4 Plaintiff does not specify whether this service was pursuant to Fed. R. Civ. P. 4(e)(2)(B)
or Ariz. R. Civ. P. 4.1(d)(2). However, the Court notes the result would not differ regardless.
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that “HR Dana Miner” resides at the “Kingman facility.” (See id.); see Melton, 739 P.2d at
1359; Hwang, 105 F.3d at 524. Additionally, Plaintiff does not assert any other means of
proper service under the Rules.5 Plaintiff has not met his burden to establish proper service
was effectuated on Defendant. See Brockmeyer, 383 F.3d at 801.
B. Good Cause
Having determined above that service on Defendant Richardson was improper, it
follows that “any default entered thereon is void[.]” Fayler, 51 F. App’x at 641. Thus,
default could be entered on that basis alone. See id. However, district courts in the Ninth
Circuit continue to examine the factors to set aside default under the “good cause” standard,
even when the court determines service was improper. See, e.g., Ewing v. Isaac, No. 22-
CV-1009-JLS-MDD, 2022 WL 17254757, at *6-7 (S.D. Cal. Nov. 28, 2022) (finding
service was improper but limiting the court’s order to granting defendant’s motion to set
aside default and affording defendant the opportunity to file a responsive pleading); see
also Ellington v. LS Brianna Martin for, No. CV-22-01782-PHX-SMB, 2023 WL
4237330, at *4-6 (D. Ariz. June 28, 2023) (vacating default judgment as void in part due
to lack of personal jurisdiction because of improper service and granting responsive party
leave to file answer and claims). Thus, undersigned will alternatively discuss the “good
cause” factors below.
1. Culpable conduct
First, undersigned determines whether Defendant engaged in culpable conduct that
led to the entry of default. Under “[t]he usual articulation of the governing standard . . . ‘a
defendant’s conduct is culpable if he has received actual or constructive notice of the filing
of the action and intentionally failed to answer.’” TCI Grp. Life Ins. Plan v. Knoebber, 244
F.3d 691, 697 (9th Cir. 2001) (quoting Alan Neuman Prods., Inc., v. Albright, 862 F.2d
1388, 1392 (9th Cir. 1988) (emphasis in original), overruled on other grounds by, Egelhoff
v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147-50 (2001)). Importantly, “intentional” in
5 Plaintiff does not assert that he effectuated proper service either under Federal Rule of Civil
Procedure 4(e)(2)(A) or (C), or under Arizona Rule of Civil Procedure 4(d)(1) or (3). Additionally,
Plaintiff does not argue proper service was made under, nor has this Court granted, alternative
means of service pursuant to Ariz. R. Civ. P. 4.1(k).
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this context means something akin to “willful, deliberate, or evidence of bad faith.” Id.
(quoting Am. Alliance Ins. Co., Ltd. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d Cir. 1996)).
Defendant avers that he “did not make a conscious choice to avoid this lawsuit, or
otherwise attempt to thwart the legal process.” (Doc. 22 at 3.) Rather, Defendant asserts
that his failure to answer “was the result of simply not being personally served with
Plaintiff’s [l]awsuit.” (Id. at 3-4.) Additionally, Defendant states that he “never received a
copy of the [s]ummons or Complaint” and was never “informed that a [s]ummons or
Complaint in this lawsuit had been ‘left’ for me until my attorney of record advised me of
such on September 28, 2025.” (Doc. 22-1 at ¶ 7.)
As discussed, supra, service on Defendant was improper. There is no information
in the record to indicate that Defendant “intentionally failed to answer” or showed any
“willful, deliberate, or . . . bad faith” conduct. See TCI Grp. Life Ins. Plan, 244 F.3d at 697.
Defendant was given notice of the present action on September 28, 2025 and quickly filed,
on October 2, 2025, the present Motion to Set Aside Default Judgment [sic]. (Doc. 22.)
Undersigned thus finds that Defendant was diligent in his filings with the Court, once
alerted to the matter. Defendant did not engage in culpable conduct that led to the entry of
default.
2. Meritorious defense
Next, undersigned looks to whether Defendant has made “some showing of a
meritorious defense,” which is a “prerequisite to vacating an entry of default.” Hawaii
Carpenters’ Tr. Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986) (internal citations
omitted). To meet that burden, Defendant “must present specific facts that would constitute
a defense.” TCI Grp. Life Ins. Plan, 244 F.3d at 700. Importantly, though, the facts do not
need to be proven as true at this juncture – instead, “[a]ll that is necessary to satisfy the
‘meritorious defense’ requirement is to allege sufficient facts that, if true, would constitute
a defense.” Mesle, 615 F.3d at 1094 (citing TCI Grp. Life Ins. Plan, 244 F.3d at 700). The
question of whether the facts stated by Defendant are actually true “would be the subject
of the later litigation.” Id. (citations omitted).
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Here, Defendant argues that he has meritorious defenses. (Doc. 22. at 5-6.)
Defendant avers that “it appears from the face of Plaintiff’s Complaint that his sole claim
against this Defendant is time-barred” because Plaintiff did not initiate his lawsuit within
the two-year statute of limitations. (Id.) Defendant asserts that the claim against him
accrued on January 6, 2022, and Plaintiff did not file his Complaint until March 27, 2024,
which would be greater than two years. (Id.) Defendant further claims that, even if the
Plaintiff’s claim is not time-barred, Defendant intends to dispute Plaintiff’s Eighth
Amendment claim. (Id. at 6) Defendant claims he will offer “evidence of his subjective
knowledge concerning the circumstances of Plaintiff’s medical condition and treatment at
issue, as well as medical records which will show Plaintiff had earlier assented to TB
treatment.” (Id.)
Plaintiff brings his cause of action pursuant to 42 U.S.C. § 1983, alleging that
Defendant violated his Eighth Amendment right to adequate medical treatment. (Doc. 10.)
Federal courts apply the state statute of limitations most applicable to the cause of action
from the state in which the cause of action arose, which, for a 42 U.S.C. § 1983 action in
Arizona, is two years. De Luna v. Farris, 841 F.2d 312, 313 (9th Cir. 1988); see also
TwoRivers v. Lewis, 174 F.3d 987, 991-992 (9th Cir. 1999) (applying the two-year statute
of limitations to a prisoner Eighth Amendment § 1983 deliberate indifference to serious
medical needs action). While the statute of limitations applicable in a § 1983 action is
borrowed from state law, federal law continues to govern when a § 1983 claim accrues.
Wallace v. Kato, 549 U.S. 384, 388 (2007); TwoRivers, 174 F.3d at 991. “Under federal
law, ‘the limitations period accrues when a party knows or has reason to know of the injury’
which is the basis of the cause of action.” Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.
1996) (quoting Golden Gate Hotel Ass’n v. San Francisco, 18 F.3d 1482, 1486 (9th Cir.
1994)).
“Under 42 U.S.C. § 1983, to maintain an Eighth Amendment claim based on prison
medical treatment, an inmate must show ‘deliberate indifference to serious medical
needs.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble,
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429 U.S. 97, 104 (1976)). The test for deliberate indifference consists of two parts in the
Ninth Circuit; 1) plaintiff must show a serious medical need; and 2) plaintiff must show
defendant’s response to the need was deliberately indifferent. Id. (citations omitted). For
the second prong, a plaintiff must first show that the defendant was “subjectively aware of
the serious medical need.” Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1018 (9th Cir.
2010) (internal quotations and citations omitted) (emphasis in original), overruled in part
on other grounds by, Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en
banc). Then, the plaintiff must show: (1) a purposeful act or failure to respond to a
prisoner’s pain or possible medical need; and (2) harm caused by the indifference. Jett, 439
F.3d at 1096. See also, e.g., Norman v. Corizon Healthcare Inc., No. CV-18-01971-PHX-
DGC-DMF, 2019 WL 7293405, at *3-4 (D. Ariz. Dec. 30, 2019) (outlining the standard
for a prisoner inadequate medical care claim under the Eighth Amendment).
If the facts as Defendant stated in his Motion are taken as true, as the Court must for
purposes of the instant Motion, Mesle, 615 F.3d at 1094, Plaintiff’s claims would be time-
barred. Defendant claims that Plaintiff reported first feeling adverse effects from the TB
treatment in December 2021 and reported these issues to the medical department on
January 6, 2022. (Doc. 22 at 5.) Defendant further states in his Motion that Plaintiff
initiated his lawsuit on March 27, 2024. (Doc. 22 at 5.) Thus, taking Defendant’s facts as
true, Plaintiff’s claim would be time-barred under 42 U.S.C. § 1983 because greater than
two years elapsed between “when a party [knew] or [had] reason to know of the injury”
and when the suit was filed. See Kimes, 84 F.3d at 1128.
Additionally, if the facts in Defendant’s Motion are taken as true, Defendant may
plead a defense that he was not subjectively aware of the risk of substantial harm, a key
element of Plaintiff’s claim. See Simmons, 609 F.3d at 1018. Defendant argues he will
present evidence and medical records disputing his subjective knowledge, which
undersigned considers “sufficient facts that, if true, would constitute a defense.” (See Doc.
22 at 6); see Mesle, 615 F.3d at 1094. Thus, after taking the facts contained in Defendant’s
declaration as true, undersigned concludes Defendant has met his burden to show he has a
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meritorious defense. This burden “is not extraordinarily heavy.” TCI Grp. Life Ins. Plan,
244 F.3d at 700.
3. Prejudice
Finally, undersigned considers prejudice to Plaintiff. “To be prejudicial, the setting
aside of a judgment must result in greater harm than simply delaying resolution of the
case.” TCI Grp. Life Ins. Plan, 244 F.3d at 701. Instead, the standard is whether Plaintiff’s
“ability to pursue the claim will be hindered.” Id. (quoting Falk, 739 F.2d at 463). That is,
“the delay must result in tangible harm such as loss of evidence, increased difficulties of
discovery, or greater opportunity for fraud or collusion.” See id. (quoting Thompson v. Am.
Home Assur. Co., 95 F.3d 429, 433-34 (6th Cir. 1996)). “[M]erely being forced to litigate
on the merits cannot be considered prejudicial for purposes of lifting a default judgment.”
Id.
Defendant argues that Plaintiff will not be prejudiced if this Court were to grant the
Motion. (Doc. 22.) Defendant argues that “[w]hile it is unfortunate Plaintiff’s [l]awsuit
may have sat for months . . . this delay will not hinder his ability to litigate his claim on the
merits.” (Id. at 6.) Defendant continues that no difficulty with discovery will result, no
other parties have appeared, and no scheduling order has been entered, thus “permitting
Defendants to enter this case now should not prejudice Plaintiff or prevent him from
meeting any current discovery deadlines.” (Id.) Undersigned agrees. Plaintiff has not
argued, nor is there any information in the record to indicate, that any prejudice greater
than delay or being forced to litigate on the merits would result from this Court granting
Defendant’s Motion. See TCI Grp. Life Ins. Plan, 244 F.3d at 701. Undersigned concludes
that Plaintiff would not be prejudiced such that any “ability to pursue the claim will be
hindered.” See id.
4. Conclusion on Good Cause
Undersigned finds that Defendant Richardson has shown good cause to set aside the
Court’s entry of default. Defendant Richardson has shown that he did not engage in
culpable conduct, has meritorious defenses, and that Plaintiff would not be prejudiced by
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reopening default. (See Doc. 22); see Mesle, 615 F.3d at 1091. Given the “especially broad”
discretion of the court when entry of default is being considered and courts’ strong
preference for adjudication on the merits, undersigned recommends this Court grant
Defendant’s Motion. See Mendoza, 783 F.2d at 945; Eitel, 782 F.2d at 1472.
CONCLUSION
Defendant requests in his Motion that default be set aside and that he be permitted
the opportunity to file a responsive pleading to the Complaint. (See Doc. 22 at 7.) As noted
above, this Court and others have granted similar relief upon setting aside a default or
default judgment. See, e.g., Ellington, 2023 WL 4237330, at *4-6; Ewing, 2022 WL
17254757, at *6-7. Good cause appearing, undersigned will recommend the District Judge
grant the Motion, set aside the entry of default, and order Defendant to file a responsive
pleading within 30 days from the day the Order is filed. Accordingly,
IT IS THEREFORE RECOMMENDED that the Court grant Defendant
Richardson’s Motion to Set Aside Default Judgment [sic] (Doc. 22) and direct the Clerk of
Court set aside its Entry of Default (Doc. 19) as to the sole remaining defendant in this
matter, Defendant Richardson.
IT IS FURTHER RECOMMENDED that the Court grant Defendant Richardson
leave to file a responsive pleading to the Second Amended Complaint within 30 days from
the date of the Court’s Order granting Defendant’s Motion to Set Aside Default Judgment
[sic] (Doc. 22).
This Report and Recommendation is not an order that is immediately appealable to
the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal
Rules of Appellate Procedure, should not be filed until entry of the District Court’s
judgment. The parties shall have fourteen days from the date of service of a copy of this
Report and Recommendation within which to file specific written objections with the
Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties
have fourteen days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
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Recommendation may result in the acceptance of the Report and Recommendation by the
District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 19th day of December, 2025.
Case 3:24-cv-08061-JJT Document 25 Filed 12/19/25 Page 13 of 13