G I N G R A S L A W O F F I C E , P L L C 3 9 4 1 E . C H A N D L E R B L V D . , # 1 0 6 - 2 4 3 P H O E N I X , A R I Z O N A 8 5 0 4 8
[they] had [no] meritorious defense; or (3) whether reopening the default judgment would prejudice" the other party.
Franchise Holding II, LLC v. Huntington Restaurants Group, Inc.
, 375 F.3d 922, 926 (9th Cir. 2004) (affirming Arizona district court's refusal tovacate entry of $24 million default judgment). A district court may properly refuse tovacate the entry of default ifany one of these factors are present; "As these factors aredisjunctive, the district court was free to deny the motion 'if any of the three factors wastrue.'
Franchise Holding II
, 375 F.3d at 926 (quoting
American Ass'n of Naturopathic Physicians v. Hayhurst
, 227 F.3d 1104, 1108 (9th Cir.2000)). Further, as the partiesseeking to vacate the default, Mr. Mobrez and Ms. Llaneras bear the burden of showingthat none of these factors are present.
Relief from the entry of default may be properly denied when the defaulting partyhas engaged in "culpable conduct"resulting in the default. In this context, "[i]f adefendant 'has received actual or constructive notice of the filing of the action and failedto answer,'its conduct is culpable."
Franchise Holding II
, 375 F.3d at 926(emphasisadded)(quoting
Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc
., 840 F.2d685, 690 (9th Cir.1988)).Here, as reflected in the Affidavits of Service (Doc. #81) Mr. Mobrez and Ms.Llaneras were personally served with the Complaint and Summons nearly a year ago inJuly 2011. Furthermore, both Mr. Mobrez and Ms. Llaneras have filed numerous pleadings in this action which conclusively demonstrates their actual knowledge of thefiling of this action. Despite this, more than three months have passedsince this Courtdenied the Mobrez Defendants' Rule 12 motions and yetthey have filedno Answer or responsivepleading of any kind.In their motion, the Mobrez Defendants appear to suggest that these eventsoccurredthrough no fault of their ownbecauseat some pointthe post office in LosAngeles failed to properly forward mail from their previous office address.Evenassuming this is true, this argument is insufficient for twodifferentreasons.
Case 2:11-cv-01426-GMS Document 95 Filed 06/12/12 Page 3 of 6