Norris v. Shenzhen IVPS Tech. Co.

DOMINIC W. LANZA, UNITED STARES DISTRICT JUDGE.

ORDER

DOMINIC W. LANZA, UNITED STARES DISTRICT JUDGE.

Pending before the Court is Defendant Shenzhen IVPS Technology Company Ltd.'s (“Shenzhen IVPS”) motion to set aside default pursuant to Rule 55(c) of the Federal Rules of Civil Procedure. (Doc. 21.) For the following reasons, the motion is denied.

The motion was originally also a motion to dismiss for lack of personal jurisdiction and, alternatively, a motion for a more definite statement. However, Shenzhen IVPS subsequently filed a motion to withdraw the portions of the motion seeking dismissal and a more definite statement. (Doc. 35.) Plaintiff did not oppose the withdrawal motion. The Court will grant the motion seeking leave to withdraw those portions of the motion.

BACKGROUND

This is a products liability action against Shenzhen IVPS, a Chinese corporation, which, according to its website, “specializes in electronic cigarette research and development, production, and sale in all markets worldwide.” (Doc. 22-1 at 2.) Shenzhen IVPS's “leading brand” is SMOK®. (Id. at 4.)

The complaint also names Shenzhen Smok Technology Company Ltd. (“Shenzhen Smok”) as a defendant. (Doc. 1.) Plaintiff asserts that he has since “learned that Shenzhen Smok no longer exists, if it ever did.” (Doc. 22 at 4.) Cf. Sarieddine v. D&A Distribution, LLC, 2018 WL 5094937, *1 (C.D. Cal. 2018) (indicating that Shenzhen IVPS was formerly known as Shenzhen Smok and referring to Shenzhen IVPS as “Smok.”). The complaint also lists various unknown defendants (XYZ Corporations I-III; ABC Partnerships I-III; John and Jane Does I-III). All of the defendants other than Shenzhen IVPS have been dismissed. (Doc. 31.)

In spring 2018, Plaintiff's aunt placed an online order for an e-cigarette from Shenzhen IVPS. (Doc. 1 ¶ 10.) The online order was placed in Arizona, and the e-cigarette was delivered to Arizona. (Id.) Plaintiff's aunt then gave the e-cigarette to Plaintiff as a gift. (Id.) Two months later, on or about June 19, 2018, while Plaintiff was sleeping in his home with the e-cigarette charging, the e-cigarette exploded, “causing a substantial fire” in which Plaintiff “was severely injured.” (Id. ¶ 13.)

On June 17, 2020, Plaintiff filed the complaint, bringing claims of product liability and negligence. (Doc. 1.)

On June 19, 2020, the Court issued its standard preliminary order, which set a 90-day service deadline pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Doc. 5.)

On September 1, 2020, Plaintiff notified the Court that service was being effected in a foreign country (China), such that Rule 4(m) did not apply. (Doc. 6.) The Court set a new service deadline of September 30, 2020. (Doc. 7.)

On September 29, 2020, Plaintiff filed a motion to extend the service deadline by 240 days, explaining that Plaintiff had already made service efforts, including attempting service via Shenzhen IVPS's attorney of record in a previous lawsuit in the Central District of California (Sarieddine v. D&A Distribution, LLC), who informed Plaintiff that he no longer represents Shenzhen IVPS and cannot accept service on its behalf. (Doc. 8 at 1-2.) Plaintiff explained that, according to the foreign service company he engaged, the procedure for service in China via the Hague Convention “typically takes 8-10 months . . . but can take as long as two years.” (Id. at 2.) The Court granted the motion and extended the service deadline to May 28, 2021. (Doc. 9.)

On May 14, 2021, Plaintiff filed a second motion to extend the service deadline by 240 days. (Doc. 10.) Plaintiff stated that the documents had been translated and submitted to the Central Authority in China in February 2021, but Plaintiff's foreign service company anticipated lengthy delay. (Id. at 2.) The Court granted the motion and extended the service deadline to January 23, 2022. (Doc. 11.)

On October 12, 2021, Plaintiff filed an application for entry of default against Shenzhen IVPS. (Doc. 12.) Plaintiff attached a letter from its foreign service company, dated July 30, 2021, and received by Plaintiff's counsel on August 6, 2021, enclosing a certificate of service on Shenzhen IVPS. (Doc. 12-1 at 2.) The certificate of service was in Chinese. (Id. at 3-4.)

On October 18, 2021, the Court issued an order requiring Plaintiff to submit an English translation of the certificate of service. (Doc. 13.) The Court explained that without an English translation, “the Court has no way of verifying that service has, in fact, been effected,” and without adequate proof of service, the Clerk could not enter default. (Id. at 2.) The Court further ordered that “after Plaintiff obtains a translation of the certificate of service and applies for and obtains entry of default from the Clerk, Plaintiff may file a motion for default judgment-but this motion should be a fully-fleshed motion that enables the Court to grant relief,” not merely a bald request for a hearing. (Id. at 2-3.)

In April 2022, the Court ordered Plaintiff to provide a status update, as he had not yet filed the English translation. (Docs. 14, 15.) On April 27, 2022, Plaintiff filed a status update in which he stated that he was “in the process of having the proof of service translated fully into English” and expected to have a translation and affidavit in the first week of May 2022. (Doc. 16.)

On May 24, 2022, Plaintiff filed a renewed application for entry of default against Shenzhen IVPS, this time attaching an English translation of the certificate of service. (Docs. 18, 18-1.) The certificate indicates that Shenzhen IVPS was served on April 28, 2021. (Doc. 18-1 at 2.)

On June 1, 2022, the Clerk entered default. (Doc. 19.)

On June 21, 2022, Shenzhen IVPS filed the pending motion to set aside the default, to dismiss for lack of jurisdiction, and alternatively for a more definite statement. (Doc. 21.) The motion is fully briefed. (Docs. 22, 29.)

On September 27, 2022, Shenzhen IVPS filed an ex parte motion to substitute counsel “due to a request by current counsel that Shenzhen obtain new counsel of record in this litigation” (Doc. 33), which the Court granted (Doc. 36).

On October 3, 2022, Shenzhen IVPS filed a motion to withdraw the portion of its motion seeking dismissal for lack of personal jurisdiction, or alternatively a more definite statement, and to withdraw the two declarations of Yuan Fumin that were filed in support of the motion and reply. (Doc. 35 at 1.) Plaintiff did not respond to the motion to withdraw.

DISCUSSION

I. Legal Standard

Under Rule 55(c) of the Federal Rules of Civil Procedure, the Court “may set aside an entry of default for good cause.” When determining whether good cause exists, courts consider the three Falk factors: “(1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the default.” Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). “This standard, which is the same as is used to determine whether a default judgment should be set aside under Rule 60(b), is disjunctive, such that a finding that any one of these factors is true is sufficient reason for the district court to refuse to set aside the default.” United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010). “Crucially, however, judgment by default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits.” Id. (quotation marks omitted). The movant “bears the burden of proving the existence of a justification” to set aside the default. Cassidy v. Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988).

Courts “consistently” refer to these factors as the “Falk factors.” Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1111 (9th Cir. 2011).

In Mesle, the Ninth Circuit faulted the district court for “omitt[ingl any mention of the ‘extreme circumstances' requirement for judgment by default,” which was “no minor omission” because “it fundamentally altered the standard, turning the court's attention to everyday oversights rather than to whether there were any extreme circumstances.” 615 F.3d at 1091. Nevertheless, the Ninth Circuit subsequently clarified that “[t]he ‘extreme circumstances' policy language was intended to remind courts that default judgments are the exception, not the norm, and should be viewed with great suspicion” and that although courts should “keep this policy concern in mind,” they are not required “in addition to applying [the] three [Falk] factors, to articulate why a particular case presents ‘extreme circumstances.'” United States v. Aguilar, 782 F.3d 1101, 1106 (9th Cir. 2015). See also Gregorian v. Izvestia, 871 F.2d 1515, 1526 (9th Cir. 1989) (“The district court erred in requiring defendants to demonstrate the existence of ‘extraordinary circumstances' in addition to satisfying the three-part [Falk test] . . . .”).

As for the first Falk factor, a plaintiff is prejudiced if his ability to pursue his claim has been “hindered” due to delay resulting in such tangible harms as the loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion. TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir. 2001) (citation omitted). “To be prejudicial, the setting aside of a judgment must result in greater harm than simply delaying resolution of the case.” Id. “[M]erely being forced to litigate on the merits cannot be considered prejudicial.” Id.

As for the second Falk factor, “[a] defendant seeking to vacate a default judgment must present specific facts that would constitute a defense,” but “the burden on a party seeking to vacate a default judgment is not extraordinarily heavy.” Mesle, 615 F.3d at 1094 (citations omitted). “All that is necessary to satisfy the ‘meritorious defense' requirement is to allege sufficient facts that, if true, would constitute a defense”-the truth of those facts is “the subject of the later litigation.” Id. Nevertheless, “conclusory statements” will not suffice, and a “mere general denial without facts to support it is not enough to justify vacating a default or default judgment.” Franchise Holding II, LLC. v. Huntington Restaurants Grp., Inc., 375 F.3d 922, 926 (9th Cir. 2004). “A complete lack of meritorious defenses itself constitutes an extreme circumstance.” Aguilar, 782 F.3d at 1107. Setting aside a default “in the absence of some showing of a meritorious defense would cause needless delay and expense to the parties and court system.” Hawaii Carpenters' Tr. Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986). When the movant makes “no showing of a meritorious defense,” it would be “an abuse of discretion to set aside the entry of default.” Id.

As for the third Falk factor, “[a] defendant's conduct is culpable if he has received actual or constructive notice of the filing of the action and intentionally failed to answer.” Mesle, 615 F.3d at 1092 (brackets omitted). “[I]n this context the term ‘intentionally' means that a movant cannot be treated as culpable simply for having made a conscious choice not to answer; rather, to treat a failure to answer as culpable, the movant must have acted with bad faith, such as an intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process.” Id. (quotation marks omitted). A defendant is culpable “where there is no explanation of the default inconsistent with a devious, deliberate, willful, or bad faith failure to respond.” Id. (citation omitted). “[S]imple carelessness is not sufficient to treat a negligent failure to reply as inexcusable, at least without a demonstration that other equitable factors, such as prejudice, weigh heavily in favor of denial of the motion to set aside a default.” Id. However, “[w]hen considering a legally sophisticated party's culpability in a default, an understanding of the consequences of its actions may be assumed, and with it, intentionality.” Id. at 1093 (emphasis added). Thus, the Court “retains the discretion (but not the obligation) to infer intentionality from the actions of a legally sophisticated party and to thereby find culpability.” Idaho Golf Partners, Inc. v. Timberstone Mgmt. LLC, 2015 WL 1481396, *4 (D. Idaho 2015). “A district court may exercise its discretion to deny relief to a defaulting defendant based solely upon a finding of defendant's culpability, but need not.” Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d 1108, 1112 (9th Cir. 2011). “[W]here the defendant has a meritorious defense and any prejudice can be cured,” a court's finding that the defendant “acted culpably [does] not preclude it, as a matter of law,” from granting relief under Rule 60(b)(1) or Rule 55(c). Id.

The decision whether to vacate the entry of default “is committed to the discretion of the district courts” and is “at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Id. (citations omitted). “The court's discretion is especially broad where . . . it is entry of default that is being set aside, rather than a default judgment.” Mendoza v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986). “[W]here timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.” Schwab v. Bullock's Inc., 508 F.2d 353, 355 (9th Cir. 1974). The same reasoning applies-with at least as much force- to relief from entry of default. Mendoza, 783 F.2d at 945.

II. Analysis

A. Culpability

Shenzhen IVPS was served on April 28, 2021. (Doc. 18-1 at 2.) Thus, Shenzhen IVPS's response to the complaint was due on or before May 19, 2021. See Fed.R.Civ.P. 12(a)(1)(A)(i). Shenzhen IVPS's first appearance in this action was on June 21, 2022 (Doc. 21), over a year after its deadline to respond to the complaint.

Shenzhen IVPS claims that it “believed a responsive pleading was not yet due” because “Plaintiff had not completed service by filing an Affidavit of Service.” (Doc. 21 at 5.) But Shenzhen IVPS could not know that an affidavit of service had not yet been filed with the Court unless it was checking the docket for this case. In other words, Shenzhen IVPS asserts that it sat idle for over a year after it was served, monitoring the docket, waiting for an affidavit of service to be filed. This explanation does not demonstrate an absence of culpability. First, Shenzhen IVPS is a sophisticated party with its own in-house counsel, established relationships with American litigation counsel, and experience litigating in American federal court. Shenzhen IVPS does not cite any ambiguity in the Federal Rules of Civil Procedure that could have contributed to its erroneous belief that a properly served defendant may refrain from responding to the complaint until after an affidavit of service is filed with the Court. Indeed, Rule 12(a)(1)(A)(i) states that “[a] defendant must serve an answer” “within 21 days after being served with the summons and complaint” unless the defendant “timely waived service,” and Rule 4(1)(3) plainly states that failure to file proof of service “does not affect the validity of service.”

Second, if Shenzhen IVPS spent the 13 months between service and its first appearance perpetually reviewing the docket to see if an affidavit of service had been filed-to determine whether, under its mistaken understanding of the rules, its response deadline had been triggered-then it must have seen that, on October 12, 2021, Plaintiff did file an affidavit of service in conjunction with an application for entry of default. (Doc. 12-1.) The affidavit was written in Chinese-a language that Shenzhen IVPS, a Chinese corporation, understands-but Shenzhen IVPS does not explain why it apparently believed that, even after the affidavit of service had been filed, it still could continue to refrain from responding to the complaint.

Shenzhen IVPS must have further seen that, on October 18, 2021, the Court ordered Plaintiff to provide an English translation of the affidavit because “[w]ithout this, the Court has no way of verifying that service has, in fact, been effected.” (Doc. 13 at 2.) Again, Shenzhen IVPS already knew it had been served, having received service on April 28, 2021, and Shenzhen IVPS already knew what the affidavit of service said, having the ability to read in Chinese. At that point, Shenzhen IVPS knew that a translation of the affidavit of service was being ordered to allow the Court to enter default against Shenzhen IVPS and that default would be entered as soon as a translation was provided. Nevertheless, Shenzhen IVPS waited for months for Plaintiff to engage a translation service to provide the translation and affidavit and to file the same, along with a renewed application for entry of default. (Doc. 18.) Shenzhen IVPS waited another week for the Clerk to enter default against it. (Doc. 19.) Shenzhen IVPS then waited three more weeks before finally filing a motion to vacate the entry of default.

The Court finds that this conduct evinces “bad faith, such as an ‘intention to take advantage of the opposing party, interfere with judicial decisionmaking, or otherwise manipulate the legal process.'” Mesle, 615 F.3d at 1092. Shenzhen IVPS essentially sat back and enjoyed a 13-month delay in this litigation while watching Plaintiff's efforts play out on the docket. As a legally sophisticated party, the Court will assume that Shenzhen IVPS possessed “an understanding of the consequences of its actions” and “with it, intentionality.” Id. at 1093.

Nor are Shenzhen IVPS's other explanations any more availing. Shenzhen IVPS claims that “additionally” it “has not been served with an application for default or a copy of the default.” (Doc. 21 at 5.) Shenzhen IVPS cites to no rule requiring Plaintiff to serve it with the application for default or a copy of the default. To the contrary, Rule 55(b)(2) requires service of the application only when “the party against whom a default judgment is sought has appeared personally or by a representative,” and here Shenzhen IVPS had not appeared. Again, Shenzhen IVPS, a sophisticated party, can be presumed to read and understand the federal rules. Moreover, an assertion that Shenzhen IVPS's default was in any way due to a lack of notice rings particularly hollow when juxtaposed with its concurrent assertion that it had been checking the docket for a full year, waiting for the affidavit of service (and English translation thereof) to be filed. Shenzhen IVPS had actual notice, via review of the docket, of both of Plaintiff's applications for entry of default- there can be no assertion of surprise here. Cf. Bertram Music Co. v. SC.GS & Co., LLC, 2009 WL 2259731, *3 (D. Ariz. 2009) (“Defendants do not assert that they had no notice of the suit, or the application for entry of default . . . . Still, Defendants chose not to appear and defend in this matter. . . . Defendants' conduct was culpable.”); Trustees of S. California IBEW-NECA Pension Plan v. Sabco Electrique, Inc., 2008 WL 4297223, *4 (C.D. Cal. 2008) (“[B]ecause Defendant was aware of the Complaint before Plaintiffs' requested default, was aware of the default proceedings, and was aware of the deadlines for filing its response, yet made no attempt to secure additional time, Defendant's failure to respond was not excusable. Rather, Defendant's failure to respond was the result of its own culpable conduct.”).

Shenzhen IVPS also claims that it believed the complaint “failed to meet the minimum pleading standard,” which “led [it] to believe” that it did not “need[] to respond.” (Doc. 21 at 5-6.) A defendant can choose not to respond to a complaint and instead allow default to be entered, but it is a risky choice-it amounts to a concession of all facts alleged in the complaint-and the making of such a choice does not provide grounds for vacating the opted-for entry of default. Cf. S.E.C. v. Internet Sols. for Bus. Inc., 509 F.3d 1161, 1166 (9th Cir. 2007) (“The defendant who chooses not to put the plaintiff to its proof, but instead allows default judgment to be entered and waits, for whatever reason, until a later time to challenge the plaintiff's action, should have to bear the consequences of such delay.”).

Thus, the Court finds that Shenzhen IVPS is culpable for the default. The Court may deny the motion to vacate based solely upon this finding. Brandt, 653 F.3d at 1112. Nevertheless, the Court, in its discretion, will consider the other Falk factors.

B. Prejudice

Shenzhen IVPS asserts that “there is no potential prejudice to Plaintiff” because the “time frame between entry of default and the filing of the [motion to vacate]” was “short” and “there is no possible evidence to support the notion that there is an increased difficulty with discovery or preservation of evidence in the limited time since Plaintiff has applied for entry of default.” (Doc. 21 at 6.) But the relevant time frame is not merely the time that has elapsed since entry of default-or since the later of Plaintiff's two applications for entry of default. The relevant period is the time that has elapsed since Shenzhen IVPS's deadline to respond to the complaint, which was May 19, 2021. The question is whether Plaintiff's “present position” is “different than it would be” had Shenzhen IVPS “filed a timely Answer” or otherwise timely responded to the complaint. Regan v. Hawaii, 2007 WL 3046463, *3 (D. Haw. 2007). Cf. Dixon v. City of Oakland, 2013 WL 1209950, *3 (N.D. Cal. 2013) (“Defendants filed this motion approximately two weeks after their . . . deadline for filing an answer. The litigation is still at an early stage, and permitting Defendants to file an answer or responsive pleading will not prejudice Plaintiff.”).

Plaintiff argues he would be prejudiced by vacatur of the default because:

In the instant case, the original date of loss was over four years ago. In this amount of time, evidence has most assuredly been spoliated, and witnesses' memories lost to time. One of Defendant's social media accounts, SmokTech, has been taken down and no longer exists. Transaction records, only accessible through subpoena power are often only kept for a limited period and are likely no longer in existence. Employees of a foreign corporation have transitioned and may not be available, and even if they are, their memories are less reliable after nearly half a decade. Other witnesses sympathetic to Plaintiff likewise will have the same challenges of recollection. Assuming this matter proceeds to trial, it will be even longer when witnesses are called to testify. Accordingly, Plaintiff's ability to pursue his claim has been greatly hindered.

(Doc. 22 at 5.)

The Court notes that Shenzhen IVPS's failure to respond to the complaint can be blamed for 13 months of delay, not four years-the time lapse between the date of loss and the inception of this suit accounts for two of the four years since the date of loss, and difficulties effecting service account for nearly a year of delay. Nevertheless, a 13-month delay is significant, and Shenzhen IVPS's reply in support of its motion to vacate fails to substantively address Plaintiff's specific assertions regarding prejudice, including the allegation that “[o]ne of Defendant's social media accounts, SmokTech, has been taken down and no longer exists.” (Id.) Furthermore, “[u]nnecessary delay inherently increases the risk that witnesses' memories will fade and evidence will become stale.” Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). The Court finds that Plaintiff would be prejudiced if the default were vacated.

Less time might have elapsed between Shenzhen IVPS's failure to respond to the complaint by the May 19, 2021 deadline and entry of default on June 1, 2022 had Plaintiff been speedier in obtaining an English translation of the affidavit of service needed to obtain entry of default. Nevertheless, in light of the finding that Shenzhen IVPS's failure to respond was culpable and the fact that at any time during the year-long delay, Shenzhen IVPS could have filed an answer, obviating Plaintiff's need to pursue default and thereby ending the needless delay, the Court considers Shenzhen IVPS responsible for the delay.

C. Meritorious Defense

Shenzhen IVPS “bears the burden of proving . . . the existence of a meritorious defense.” Cassidy, 856 F.2d at 1415. It has not met this burden. The portion of Shenzhen IVPS's motion arguing that the Court should vacate the entry of default is quite short-less than three pages long-and only one sentence is devoted to arguing that Shenzhen IVPS has a meritorious defense: “IVPS has a meritorious defense to the allegations contained in Plaintiff's Complaint as IVPS is simultaneously moving to dismiss the Complaint for a lack of personal jurisdiction.” (Doc. 21 at 6.) The remainder of the motion is a six-page argument in favor of dismissal due to lack of personal jurisdiction under Rule 12(b)(2) and a two-page argument for “a more definite statement” under Rule 12(e) “if and only if the motion to dismiss for lack of jurisdiction is denied.” (Id. at 7-13.) However, Shenzhen IVPS subsequently withdrew its motion to dismiss for lack of personal jurisdiction (as well as its motion for a more definite statement). (Doc. 35 at 1.) As such, Shenzhen IVPS has withdrawn its only asserted defense.

Finally, Shenzhen IVPS also suggests that the complaint might be insufficient. (Doc. 21 at 12-13.) But even without setting aside default, Shenzhen IVPS will have the opportunity to contest the sufficiency of the complaint in its response to the forthcoming motion for default judgment.

CONCLUSION

Shenzhen IVPS has not established that good cause warrants setting aside the entry of default. The default stands, such that the “well-pled allegations in the complaint regarding liability are deemed true.” Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002).

The Court previously ordered that after the Clerk entered default, Plaintiff could file a “fully-fleshed” motion for default judgment “that enables the Court to grant relief,” “with or without a hearing.” (Doc. 13 at 2-3.) The Court considers various factors when deciding whether default judgment is appropriate, including: (1) the possibility of prejudice to the plaintiff, (2) the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of factual disputes, (6) whether the default was due to excusable neglect, and (7) the policy favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

In light of the findings and conclusions in this order, it is clear that the first, fifth, and sixth factors can be resolved in favor of granting default judgment. This order establishes that Plaintiff would be prejudiced in the absence of default judgment. There can be no factual dispute because the facts in the complaint are deemed true. The default was due to Shenzhen IVPS's culpable conduct, not to excusable neglect.

The seventh factor always weighs against granting default judgment but “is not dispositive.” PepsiCo, Inc. v. Cal. Sec. Cans., 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002).

Thus, Plaintiff's motion for default judgment should focus on the second, third, and fourth factors. Plaintiff's motion also should demonstrate “entitlement to the sought amount of damages” by providing detailed affidavits and supporting exhibits. (Doc. 13 at 4.) Shenzhen IVPS's response may not challenge the truth of the well-pleaded allegations in the complaint, which are taken as true due to the default, but it may challenge whether those allegations, taken as true, entitle Plaintiff to relief. Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992). Shenzhen IVPS may also challenge Plaintiff's evidence as to damages. Either side may request a hearing. Any such request may or may not be granted, at the Court's discretion.

Accordingly, IT IS ORDERED that Shenzhen IVPS's unopposed motion to withdraw the portions of its motion seeking dismissal or a more definite statement (Doc. 35) is granted.

IT IS FURTHER ORDERED that Shenzhen IVPS's motion to set aside the entry of default (Doc. 21) is denied.

IT IS FURTHER ORDERED that Plaintiff shall file a motion for default judgment by December 6, 2022 .