MJD Industries LLC v. Kysta Enterpise Co Ltd

THE HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE MJD INDUSTRIES, LLC, d/b/a ARES TOOL, a CASE NO. C20-0069-JCC Washington limited liability company, MINUTE ORDER 11 Plaintiff, v. KYTSA ENTERPRISE, CO. LTD. d/b/a OZARK, a Taiwanese company, Defendant.

16 The following Minute Order is made by direction of the Court, the Honorable John C.

17 Coughenour, United States District Judge: 18 This matter comes before the Court on Defendant’s motion to dismiss (Dkt. No. 19), Plaintiff’s response (Dkt. No. 24), and Defendant’s reply (Dkt. No. 27). Defendant asks the Court to dismiss this action because Plaintiff’s claims should have been asserted as compulsory counterclaims in an earlier-filed California state court action and because Plaintiff failed to properly serve Defendant. (See generally Dkt. No. 19.) Plaintiff argues that Defendant’s motion should be denied because the Clerk previously entered default and Defendant has not formally moved to set aside the entry of default. (See generally Dkt. No. 24.) In effect, however, Defendant seeks to set aside the entry of default in its motion to dismiss, and courts generally “show[] considerable leniency in treating other procedural steps as equivalent to a motion [to set aside entry of default.” 10A Fed. Prac. & Proc. Civ. § 2692 (4th ed.) (citing cases); see also A.F.

2 Holdings LLC v. Skoda, 2013 WL 460431, slip op. at 2 (E.D. Cal. 2013) (“While defendant did not formally make a motion to set aside the default, his opposition to the motion to strike the answer has similar effect.”). Following that approach, the Court construes Defendant’s motion (Dkt. No. 19) as a motion to set aside the entry of default under Federal Rule of Civil Procedure 55(c) and dismiss under Rule 12(b)(5) and California Code of Civil Procedure § 426.30.

7 The Court DIRECTS the Clerk to re-note the motion (Dkt. No. 19) for January 4, 2021.

8 Plaintiff may file a supplemental response brief by December 18, 2020, and Defendant may file a supplemental reply brief by January 4, 2021.

10 DATED this 3rd day of December 2020.

11 William M. McCool Clerk of Court s/Paula McNabb 13 Deputy Clerk