Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

No. 87-6499.

United States Court of Appeals, Ninth Circuit.

Before CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges, and PHILIP M. PRO,^**  District Judge.

MEMORANDUM^*** 

Defendant-appellant Milton Evangelou, Jr. appeals pro se the entry of a default judgment against him. On appeal, he concedes the default but nevertheless argues that (1) he was entitled to notice before entry of judgment; and (2) the district court abused its discretion in refusing to set aside the default. We affirm.

DISCUSSION

Evangelou contends that he should have received notice prior to the entry of default judgment against him. When a party has appeared in an action, Fed. R. Civ. P. 55(b) requires notice to the defaulted party prior to entry of a default judgment. See Wilson v. Moore & Assocs., Inc., 564 F.2d 366, 368-69 (9th Cir. 1977). There is no question that Evangelou "appeared" in this action when he sought to dismiss the complaint. See Direct Mail Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 689 (9th Cir. 1988) (appearance involves any presentation or submission to the court). Thus, the default judgment entered by the clerk in this case for $12,000 was void. See id. (entry of default by clerk when defendant has appeared is "void ab initio "). We conclude, however, that the error was corrected by the district court when it set aside the $12,000 default judgment and entered a new default judgment for $3,000. There is no dispute that Evangelou received notice for that second judgment, a product of his motion to set aside the default.

Fed. R. Civ. P. 55(c) provides that for good cause shown the court may set aside an entry of default and if a default judgment has also been entered, may similarly set it aside in accordance with Fed. R. Civ. P. 60(b). A district court's refusal to set aside either the entry of default or a default judgment is reviewed for an abuse of discretion. Direct Mail, 840 F.2d at 690 (default judgment); Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986) (entry of default).

Evangelou first contends that the district court abused its discretion in refusing to set aside the entry of default. We reject that contention because " [a] party in default ... is required to make some showing of a meritorious defense as a prerequisite to vacating an entry of default." Hawaii Carpenters', 794 F.2d at 513. Evangelou admits that he failed to make such a showing below. Moreover, he has also failed to present any theory of a meritorious defense on appeal.

Evangelou also challenges the district court's refusal to totally set aside the default judgment. A district court has discretion to deny such relief if (1) the defendant's culpable conduct led to the default; (2) the defendant has no meritorious defenses; or (3) the plaintiff would be prejudiced if the judgment is set aside. Meadows v. Dominican Republic, 817 F.2d 517, 521 (9th Cir.), cert. denied, 108 S. Ct. 486 (1987). When default judgment is entered as a result of defendant's culpable conduct, however, we need not consider the other two factors. Id. A defendant's conduct is culpable if he or she has received actual or constructive notice of the filing of the action and failed to answer. Id.

Evangelou admits that he had actual notice of the filing of the complaint but nevertheless failed to file a timely response. Thus, Evangelou's conduct was culpable and he is not entitled to relief. See, e.g., Direct Mail, 840 F.2d at 690 (defendant's actual notice of filing of action and his failure to answer was culpable conduct that precluded relief from default judgment).

Finally, Evangelou argues that the United States would not be prejudiced by setting aside the default judgment and allowing the action to be decided on the merits. See, e.g., Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986) (motion for default judgment properly denied when plaintiff failed to show prejudice from one defendant's failure to comply strictly with time requirements). The record shows, however, that Evangelou consistently failed to respond timely to the charges against him. More important, he has yet to offer any meritorious defense that would allow us to resolve doubt about the outcome of the case in his favor. See Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985) (movant must offer meritorious defense to allow court to resolve doubt in favor of a motion to set aside a default judgment). Under these circumstances, we conclude that the district court did not abuse its discretion in refusing to set aside the default.

AFFIRMED.