Jacobs

MEMORANDUM **

Willette D. Jacobs appeals pro se orders of the district court vacating the clerk’s entry of default and dismissing the complaint. Although the district court did not enter final judgment, we have jurisdiction pursuant to 28 U.S.C. § 1291 because the district court made clear its intent to terminate the action. See Spurlock v. F.B.I., 69 F.3d 1010, 1015 (9th Cir.1995). We affirm in part, reverse in part, vacate in part, and remand.

We review the district court’s decision to set aside the entry of default for an abuse of discretion. O’Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir.1994). Because defendants Flanagan and Manuel timely moved to vacate and had meritorious defenses, the district court’s decision to set aside the default was not “clearly wrong.” See id. Because the Department of Developmental Services and Lanterman Developmental Center timely executed a waiver of service on January 30, 2002, the district court properly vacated the default entered by the clerk on February 12, 2002. See Fed.R.Civ.P. 4(d)(3) and 55(c).

We review de novo dismissals pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). Arlington v. Wong, 237 F.3d 1066 , 1069 (9th Cir.2001). The…

concurring in part and dissenting in part.

I dissent from the majority’s decision to take judicial notice of the evidence that Jacobs submitted concerning the date on which her complaint was received by the district court. First, this evidence was submitted only with the reply brief and *101 was neither in the record nor in a request for judicial notice as to which Defendants had an opportunity to respond. Second, it is not certain from the face of the document that it is the instant complaint that was filed on September 17, 2001. Instead, I would vacate the dismissal of the Title VII claim against Plaintiffs employer and return the question of timeliness to the district court for further factfinding.

In other respects I concur.