I. BACKGROUND

28 1 Plaintiff, at issue is an annuity benefit payable under a guaranteed fixed annuity, following the 2 death of Geneva Perkins. (See id.) Plaintiff asserts that it cannot determine to whom the annuity 3 benefit is payable due to conflicting claims of the defendants. (See id.) 4 On February 6, 2019, Defendant Raymond Calloway executed a waiver of service of 5 summons. (Doc. 10.) In signing the waiver of service, Defendant Raymond Calloway indicated 6 his understanding that he “must file and serve an answer or a motion under Rule 12” within 60 7 days from the date the request for waiver of service was sent, and that if he failed to do so “a 8 default judgment will be entered” against him. (See id.) Plaintiff did not file a responsive 9 pleading with the required time period. On November 5, 2019, Plaintiff requested that the Clerk 10 of Court enter default against Defendant Raymond Calloway (Doc. 31), which was entered on 11 November 6, 2019 (Doc. 33). 12 The parties convened on the record for a scheduling conference on April 30, 2020. (See 13 Doc. 63.) Defendants Raymond Calloway appeared telephonically at the conference and indicated 14 his wish to set aside the Clerk’s entry of default against him. (See id.) The Court directed him to 15 file a motion to that effect by no later than May 8, 2020, which he filed on May 4, 2020 (Doc. 64) 16 and is presently before the Court. 17 II. DISCUSSION 18 A. Legal Standard 19 Federal Rule of Civil Procedure 55 governs the entry of default by the clerk and the 20 subsequent entry of default judgment by either the clerk or the district court. In relevant part, Rule 21 55(a) provides: 22 (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown 23 by affidavit or otherwise, the clerk must enter the party’s default. 24 Fed. R. Civ. P. 55(a).1 25 Federal Rule of Civil Procedure 55(c) provides that “[t]he court may set aside an entry of 26 1 As the Ninth Circuit Court of Appeals has stated, Rule 55 requires a “two-step process” consisting of: (1) seeking a 27 clerk’s entry of default, and (2) filing a motion for the entry of default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (“Eitel apparently fails to understand the two-step process required by Rule 55”); accord 28 Symantec Corp. v. Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting that Rules 55(a) and (b) provide a 1 default for good cause . . . .” The party seeking relief from the entry of default bears the burden of 2 showing good cause to set aside the entry of default. See Franchise Holding II, LLC v. 3 Huntington Rests. Group, Inc., 375 F.3d 922, 926 (9th Cir. 2004). A court considers three factors 4 in determining whether good cause exists: “(1) whether [the party seeking to set aside the default] 5 engaged in culpable conduct that led to the default; (2) whether [it] had [no] meritorious defense; 6 or (3) whether reopening the default judgment would prejudice the other party.” United States v. 7 Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) 8 (hereafter, “Mesle”) (modification in original) (quoting Franchise Holding II, LLC, 375 F.3d at 9 925–26). 10 Under this disjunctively-framed standard, “a finding that any one of these factors is true is 11 sufficient reason for the district court to refuse to set aside the default.” Mesle, 615 F.3d at 1091; 12 Brandt v. Am. Bankers Ins. Co., 653 F.3d 1108, 1111 (9th Cir. 2011). However, a court may 13 within its discretion grant relief from default even after finding one of the “good cause” factors to 14 be true. See, e.g., Brandt, 653 F.3d at 1112 (“A district court may exercise its discretion to deny 15 relief to a defaulting defendant based solely upon a finding of defendant’s culpability, but need 16 not.”) (emphasis added). “The court’s discretion is especially broad where . . . it is entry of default 17 that is being set aside, rather than a default judgment.” O’Connor v. State of Nev., 27 F.3d 357, 18 364 (9th Cir. 1994). The factors are more liberally applied with respect to a request to set aside 19 the entry of default, because “there is no interest in the finality of the judgment with which to 20 contend.” Mesle, 615 F.3d at 1091 n.1. 21 Additionally, the Ninth Circuit has emphasized that resolution of a motion to set aside the 22 entry of default is necessarily informed by the well-established policies favoring resolution of 23 cases on their merits and generally disfavoring default judgments. See Mesle, 615 F.3d at 1091 24 (“[J]udgment by default is a drastic step appropriate only in extreme circumstances; a case should, 25 whenever possible, be decided on the merits”) (citations and quotation marks omitted); 26 Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 2009) (“As a general rule, 27 default judgments are disfavored; cases should be decided upon their merits whenever reasonably 28 possible”). Moreover, the Ninth Circuit’s “rules for determining when a default should be set aside 1 are solicitous towards movants, especially those whose actions leading to the default were taken 2 without the benefit of legal representation.” Mesle, 615 F.3d at 1089. 3 With the above principles in mind, the Court proceeds to consider Defendant Raymond 4 Calloway’s request to set aside the Clerk’s entry of default. 5 B. Analysis 6 1. Culpable Conduct 7 In this case the Court cannot conclude that Defendant Raymond Calloway’s conduct was 8 culpable under the standard set forth above. Defendant Raymond Calloway clearly had both 9 actual and constructive notice of the filing of this action, yet his motion makes clear that he 10 engaged in conduct that led to the default based on his own (mistaken) belief regarding the “the 11 fact that [he] had to submit an answer to the court regarding the complaint to be included in further 12 proceedings.” (Doc. 64.) See Mesle, 615 F.3d at 1092 (“[A] defendant’s conduct is culpable if he 13 has received actual or constructive notice of the filing of the action and intentionally failed to 14 answer.”) While Defendant Raymond Calloway should have followed the advisement on the 15 waiver of service he signed—to file a responsive pleading by April 8, 2019—or at a minimum 16 sought clarification, he promptly filed his motion to set aside default following his participation in 17 the Court’s telephonic conference and no party has opposed the motion. In addition, Defendant 18 Raymond Calloway is proceeding pro se and, as such, is entitled to such greater “solicitude.” See 19 id. at 1089. Accordingly, the Court finds that Defendant Raymond Calloway is not so culpable so 20 as to justify refusing to vacate the default entered against him. 21 2. Lack of a Meritorious Defense 22 Defendant Raymond Calloway does not explicitly address this point in his motion. At a 23 minimum, however, the present record does not affirmatively show the absence of a meritorious 24 defense. Indeed, the complaint alleges that at the time the subject annuity was issued, the 25 decedent Geneva Perkins designated Defendant Raymond Calloway, her nephew, as her primary 26 beneficiary. (See Doc. 1 ¶ 14.) As such, this factor does not counsel in favor of denying 27 Defendant Raymond Calloway’s request to set aside the default. 28 3. Prejudice 1 “To be prejudicial, the setting aside of a judgment [or clerk’s entry of default] must result 2 in greater harm than simply delaying resolution of the case.” Mesle, 615 F.3d at 1095. Here, there 3 is no indication that Plaintiff’s ability to determine the proper beneficiary(ies) of the annuity will 4 be hindered by the delay in setting aside the Clerk’s entry of default, as no dates or deadlines have 5 been set in this case. Moreover, the parties’ lack of opposition to the motion indicates that any 6 potential prejudice would be minimal. 7 III. CONCLUSION AND ORDER 8 In sum, Defendant Raymond Calloway’s lack of culpability and the lack of prejudice to the 9 parties both weigh in favor of setting aside the entry of default. Based on those factors and the 10 general preference for resolving cases on their merits, the Court concludes that good cause exists 11 to set aside the Clerk’s entry of default against Defendant Raymond Calloway. 12 Accordingly, it is HEREBY ORDERED that: 13 1. Defendant Raymond Calloway’s motion to set aside the Clerk’s entry of default 14 (Doc. 64) is GRANTED and the entry of default against him (Doc. 33)2 is SET 15 ASIDE; 16 2. Defendant Raymond Calloway SHALL respond to the complaint by no later than 17 seven (7) days of the service of this order; and 18 3. To the extent not already done, Plaintiff’s counsel SHALL send to Defendant 19 Raymond Calloway copies of all pleadings, motions, and/or disclosures filed by 20 Plaintiff in this action. 21

IT IS SO ORDERED.

22

Sheila K. Oberto 23 Dated: May 29, 2020 /s/ .

UNITED STATES MAGISTRATE JUDGE

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