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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

TIMMY O’NEIL CHARITY, 

Plaintiff, No. CIV S-04-0444 GEB GGH P

vs.

THOMAS CARROLL, Warden, et al., ORDER 

Defendant.

 /

Plaintiff, a prisoner incarcerated in the state of Delaware, seeks relief pursuant to

42 U.S. C. § 1983. On August 10, 2005, this court filed, inter alia, an order to show cause as to

one of the defendants in this action, Thomas Carroll, Warden of Delaware Correctional Center,

directing him to show cause why he should not be found in default and why a default judgment

should not be entered against him in this action wherein plaintiff seeks a declaratory judgment. 

The undersigned noted that defendant Carroll had apparently signed a waiver on October 26,

2004, filed in this court on November 5, 2005, indicating that he was aware a judgment may be

entered against him should he fail to file an answer to plaintiff’s amended complaint or a motion

in response under Rule 12 of the Federal Rules of Civil Procedure. Defendant Carroll was given

30 days to show cause why he had filed neither an answer nor a responsive motion, but did not

file any response, thus also failing to discharge the show cause order. The court thereafter, by

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order filed on October 13, 2005, deemed defendant Carroll to be in default on this matter and the

Clerk of the Court was directed to enter a judgment of default against defendant Carroll.

On November 21, 2005, defendant Carroll moved to set aside the entry of default

and to vacate the default judgment which was entered on October 13, 2005. Plaintiff opposed the

motion and defendant thereafter filed a reply. Defendant Carroll moves to set aside the entry of

default, pursuant to Fed. R. Civ. P. Rule 55(c) and to vacate the default judgment, pursuant to

Fed. R. Civ. P. Rule 60(b). 

Defendant Carroll, Warden of Delaware Correctional Center (DCC), has set forth

by way of a declaration, inter alia, that in all legal matters arising from his employment with the

Delaware Department of Corrections (DOC) that he is represented by Deputy Attorneys General

of the Delaware Department of Justice (DOJ); that he is frequently served with prisoner lawsuits,

many of which have been filed in the U.S. District Court for the District of Delaware; that to the

best of his knowledge, other than in the instant matter he has never been a party to a lawsuit

outside of the state of Delaware; and that it is the long-standing practice of his office to, upon

receipt of a Delaware District Court lawsuit, to sign the Waiver of Summons form, which his

secretary forwards to the court. See Thomas Carroll Declaration (Dec.), Exhibit (Exh.) A to

defendant’s motion ¶¶ 1-5. He also declares that it was his understanding that all lawsuits

against himself, the DOC, or any other employee of the DOC are served on the Attorney General

at the Delaware DOJ and that he does not review a complaint in detail or take any further action

based on his belief that it is the Delaware Attorney General’s Office that advises him with respect

to pending legal proceedings and any required action in a lawsuit. Carroll Dec., ¶¶ 6-7. 

Defendant Carroll declares that as he was unaware that the standard practice with regard to

lawsuits against him would not be followed with regard to the service of the summons and

complaint on the Delaware Attorney General, he took no further action. Id., ¶¶ 8-9. 

Also attached to defendant Carroll’s motion is the declaration of Delaware

Deputy Attorney General (DAG), Ophelia Waters, who is the supervisor for the Delaware DOJ’s

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 In relevant part, 29 Del. C. § 2504 sets forth that the Del. DOJ and Attorney General 1

have the “powers, duties and authority: ... (3)...to represent as counsel in all proceedings or

actions which may be brought on behalf of or against them in their official capacity in any

court...all officers, agencies, departments, boards, commissions, and instrumentalities of state

government....” 

 10 Del. C. § 3103(c) states: “No service of summons upon the State, or upon any 2

administrative office, agency, department, board or commission of the state government, or upon

any officer of the state government concerning any matter arising in connection with the exercise

of his or her official powers or duties, shall be complete until such service is made upon the

person of the Attorney General or upon the person of the State Solicitor or upon the person of the

Chief Deputy Attorney General.”

 Of course, service under Fed. R. Civ. P. 4 is not impacted by state statutes unless, under 3

Rule 4, service is being made pursuant to state law.

3

Correction Unit. See Waters Dec., ¶ 1. Exh. B to defendant’s motion. DAG Waters declares that

the Delaware (Del.) DOJ is required by statute, 29 Del. C. § 2504, to represent all state officers

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in any legal action against them in their official capacities (a copy of which follows her affidavit

as part of Exh. D to defendant’s motion). Id., ¶ 2 and Exh. D. Specifically, DAG Waters states

that attorneys in the Del. DOJ Correction Unit are assigned to represent defendant Carroll in all

matters arising from his duties as the DCC warden. Waters Dec., ¶ 3. She also declares that,

under Del. law, service upon a state officer is not complete until the person of the Attorney

General, that State Solicitor or the Chief Deputy Attorney General has been made, citing 10 Del.

C. § 3103 (a copy of which is also attached as Exh. D). Id., ¶ 4 and Exh. C. DAG Waters avers 2

that that code section has applied to pro se prisoner lawsuits for many years; that upon the filing

of a complaint a pro se litigant is directed by the court to serve both any defendant and the

Attorney General as well; that the longstanding practice of the Del. DOJ is to forward a

prisoner’s lawsuit, once served, to the Correction Unit, whereupon a DAG in that unit takes the

requisite steps to represent the DOC and/or its employees in that case. Waters Dec., ¶¶ 5-6. 3

Specifically, DAG Waters declares that the Del. Attorney General was not served with the

complaint but instead that defendant Carroll received a copy of complaint, along with a form

Notice of Lawsuit and Request for Waiver of Service of Summons from this court, the Eastern

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District of California, which form is virtually identical to that used by the District of Delaware (a

copy of which is attached as Exh. C to defendant’s motion). Id., ¶ 7. She declares that her office

did not receive notice of the lawsuit until October 17, 2005, four days after the entry of default. 

Id., ¶ 8. 

Federal Rule of Civil Procedure, 55(c) provides that a default may be set aside for

“good cause.” “Good cause” is demonstrated by: (1) a sufficient excuse for not meeting the

filing deadline; (2) a meritorious defense; and (3) that setting aside default will not unfairly

prejudice the other party. Madsen v. Bumb, 419 F.2d 4, 6 (9th Cir. 1969); Mendoza v. Wight

Vineyard Management, 783 F.2d 941, 945 (9th Cir. 1986). See Tri-Continental Leasing Corp. v.

Zimmerman, 485 F. Supp. 495, 497 (N. D. Cal. 1980). As a general rule, as defendant observes

(motion, p. 6), default judgments are “ordinarily disfavored” because “[c]ases should be decided

on the merits whenever reasonably possible.” Eitel v. McCool, 782 F.2d 1470, 1472 (9 Cir. th

1986). 

The court has discretion to determine whether good cause has been shown. See

Madsen, 419 F.2d at 6; Curry v. Jensen, 523 F.2d 387, 388 (9th Cir. 1975). The court’s

discretion is particularly generous where the motion seeks to set aside an entry of default, rather

than a default judgment. Mendoza, 783 F.2d at 945. Any doubt should be resolved in favor of

setting aside the default in order to decide cases on their merits. Schwab v. Bullock’s, Inc., 508

F.2d 353, 355 (9th Cir. 1974). 

Leniency in setting aside a default is especially appropriate if the attorney failed

the client. Girlsongs & Warner Bros., Inc. v. Starkey, 108 F.R.D. 275, 277 (N.D. Cal. 1984). In

reversing the dismissal of an action for failure to timely file a brief, the Ninth Circuit stated:

[The] default was the fault of the attorneys and not the litigant. Yet

the impact of the sanction imposed is primarily against the client. 

We have no intent to disavow the established principle that the

faults and defaults of the attorney may be imputed to, and their

consequences visited upon, his client. We do, however, believe

that when any court is considering the imposition of sanctions for

non-jurisdictional, procedural defaults and deficiencies in the

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management of litigation, the selection of the sanction to be

imposed must take into consideration the impact of the sanction

and the alternatives available to achieve assessment of the penalties

in conformity with fault. Absent such consideration, there is an

abuse of discretion. 

In Re Hill, 775 F.2d 1385, 1387 (9th Cir. 1985).

Although no mention is expressly made in Rule 55(c) of whether the late filing

was a result of “mistake” or “inadvertence,” the analogous Rule 60(b) allows the court to vacate

an entry of default judgment upon a showing of “mistake, inadvertence, or surprise.” The Ninth

Circuit has clearly stated that the standard for setting aside an entry of default under Rule 55(c) is

more liberal than that of vacating a default judgment under Rule 60(b). Mendoza, supra, at 945. 

In light of the less stringent standard of review for setting aside an entry of default, some courts

have gone so far as to hold that a finding of excusable neglect is not absolutely necessary. See

Rasmussen v. W.E. Hutton & Co., 68 F.R.D. 231, 235 (N.D. Ga. 1975); Bavouset v. Shaw’s of

San Francisco, 43 F.R.D. 296, 298 (S.D. Tex. 1967).

Moreover, willfulness of the default is a factor. See Madsen, 419 F.2d at 6

(quoting Moore’s Federal Practice § 55.10[2]); United Coin Meter v. Seaboard Coastline RR.,

705 F.2d 839, 845 (6th Cir. 1983) (“Where default results from an honest mistake ‘rather than

willful misconduct, carelessness or negligence’ there is especial need to apply Rule 60(b)

liberally.”) (quoting Ellingsworth v. Chrysler, 665 F.2d 180, 185 (7th Cir. 1981)); Medunic v.

Lederer, 533 F.2d 891, 893 (3rd Cir. 1976). See also Admiral Home Appliances v. Tenavision,

Inc., 585 F. Supp. 14, 16 (D. N.J. 1982) aff’d, 735 F.2d 1347 (1984) (court denied motion to set

aside entry of default judgment where counsel exhibited “an arrogance and disregard of the

consequences, not mistake, inadvertence or excusable neglect.”)

Put simply, if any good reason exists to set aside the default, the court should find

good cause for doing so. Plaintiff contends, in opposition, that defendant Carroll should have

been aware that this was a California case and that he could have consulted the Del. Attorney

General with any questions. Opp., pp. 1-2. He argues that he will be prejudiced by having the

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entry of default set aside if defendant Carroll is now allowed to proceed against him in this

matter with representation and he maintains that defendant Carroll does not have a meritorious

defense. Opp., p. 2. 

The gravamen of plaintiff’s amended complaint is that he was denied due process

by the taking of a second set of DNA samples, on October 21, 2002, at the request of the

California Department of Justice, the first DNA samples having been taken on December 9,

1998, also without due process and also at the behest of the CA DOJ. See Amended Complaint,

p. 3A. Defendant Carroll in his motion to set aside entry of default argues that California courts

have previously rejected the argument that the taking of DNA samples, pursuant to Cal. Penal

Code § 296, violated due process, citing a California state court appellate decision, Alfaro v.

Terhune, 98 Cal. App.4th 492 (2002). Defendant’s motion, p. 7. In that case, the state court of

appeal rejected the argument made by eight women that requiring them to submit DNA samples

violated their constitutional rights against unreasonable searches and seizures and their privacy

rights because, as they were sentenced to death, they did not pose any future threat of criminality. 

Plaintiff argues that his allegation is that his due process rights were violated by the taking of the

DNA samples a second time at the CA DOJ’s request. Opp., pp. 2-3. In reply, defendant Carroll

maintains that whether the allegations concern a first or second request the same ruling by the

California courts applies, upholding the validity of the applicable statute. Reply, pp. 2-3. 

On the face of it, there appears to be no willfulness on the part of defendant

Carroll in his failure to respond to the complaint or the show cause order. Moreover, as to the

meritoriousness of his defense, defendant has made an adequate, although not dispositive,

showing. In addition, although a discovery order has issued in this case, there has, as yet, been

no scheduling order filed. The undersigned does not find that plaintiff’s arguments as to the

prejudice he might suffer by allowing defendant Carroll in these proceedings have sufficient

substance. The court will grant defendant’s motion to set aside the entry of default as to

defendant Carroll, will vacate the order deeming defendant Carroll to be in default, and will

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direct the judgment of default as to defendant Carroll to be vacated as made in error. Defendant

Carroll will be directed to file a response to the amended complaint, in the form of an answer or a

motion, pursuant to Fed. R. Civ. P. 12, within thirty days.

Accordingly, IT IS ORDERED that:

1. Defendant Carroll’s November 21, 2005, motion to set aside the entry of

default is granted;

2. The Order, filed on October 13, 2005, deeming defendant Carroll to be in

default in this action and directing the Clerk of the Court to enter a judgment of default against

defendant Carroll is hereby vacated, as is the October 13, 2005, default judgment, which was

entered in error (docket entry no. 21); 

3. The Clerk of the Court is directed to note in the court’s docket that docket

entries no. 20 and no. 21 have been vacated;

4. Defendant Carroll is directed to file a response to the amended complaint, in

the form of an answer or a motion, pursuant to Fed. R. Civ. P. 12, within thirty days. 

DATED: 9/8/06

/s/ Gregory G. Hollows

 

 GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

GGH:009

char0444.vac

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