Norma Delgado Molina, in her individual capacity v. DEMPSEY’S ADULT CARE HOMES, LLC, an Arizona limited liability company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMA DELGADO MOLINA, in her
individual capacity,
Plaintiff-Appellee,
v.
DEMPSEY’S ADULT CARE HOMES,
LLC, an Arizona limited liability company;
RUTH DEMPSEY WOODS, a proprietor
and statutory agent,
Defendants-Appellants.
No. 22-15176
D.C. No. 4:20-cv-00446-JR
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Jacqueline Rateau, Magistrate Judge, Presiding
Submitted April 19, 2023**
Phoenix, Arizona
Before: TALLMAN, OWENS, and BADE, Circuit Judges.
Dempsey’s Adult Care Homes, LLC, and its owner, Ruth Dempsey Woods
(collectively, “Appellants”), appeal from the district court’s entry of default
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
judgment in favor of Norma Delgado Molina (“Delgado”) and denial of their
motion to set aside the entry of default. We affirm.
1. We have jurisdiction under 28 U.S.C. § 1291. Entry of default
judgment is a final decision for purposes of § 1291, see Baker v. Limber, 647 F.2d
912, 916 (9th Cir. 1981), and “an unresolved issue of attorney’s fees for the
litigation in question does not prevent judgment on the merits from being final,”
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988). Therefore, we
have jurisdiction notwithstanding the district court’s award of attorney’s fees “in
an amount to be determined.”
Further, we decline Appellants’ invitation to “enter a ruling” declaring that
Delgado is “precluded on remand from seeking an award of attorney’s fees.” We
leave it to the district court to address the issue of fees in the first instance. See
CoreCivic, Inc. v. Candide Grp., LLC, 46 F.4th 1136, 1145–46 (9th Cir. 2022) (“In
general, an appellate court does not decide issues that the trial court did not
decide.” (quoting Planned Parenthood of Greater Wash. & N. Idaho v. U.S. Dep’t
of Health & Hum. Servs., 946 F.3d 1100, 1110 (9th Cir. 2020)).
2. The district court did not abuse its discretion in denying Appellants’
motion to set aside the entry of default. See United States v. Signed Personal
Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010). A district
court “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c).

-- 2 of 5 --

3
Good cause does not exist, however, when the party seeking to set aside the default
“engaged in culpable conduct” or failed to “allege sufficient facts that, if true,
would constitute a defense.” Mesle, 615 F.3d at 1091, 1094 (citation omitted).
Appellants’ unexplained failure to respond to the complaint, despite having
notice of the action, amounts to culpable conduct. See id. at 1092–93 (stating that
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” and that “[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” (citations omitted)). As the district court recognized, Appellants’
calendaring excuse does not explain their failure to meet the initial deadline of
March 15 or the March 19 deadline based on the extension that Delgado’s counsel
offered.
Additionally, Appellants failed to establish a meritorious defense when they
summarily argued that Delgado was an independent contractor without factual
support. See TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 700 (9th Cir.
2001) (noting that a “mere general denial without facts to support it” is insufficient
to vacate a default (citation omitted)), overruled on other grounds by Egelhoff v.
Egelhoff ex rel. Breiner, 532 U.S. 141 (2001); Franchise Holding II, LLC v.
Huntington Restaurants Grp., Inc., 375 F.3d 922, 926 (9th Cir. 2004) (explaining

-- 3 of 5 --

4
that “conclusory statements that a dispute existed” are not enough to justify
vacating a default).
3. The district court did not err in holding Woods liable as an
“employer” under the Arizona Earned Paid Sick Time Act. See Ariz. Rev. Stat.
Ann. § 23-364(G). The Act provides that an “employer” includes a “limited
liability company” and an “individual or other entity acting directly or indirectly in
the interest of an employer in relation to an employee.” Id. § 23-371(G).
Therefore, the statutory definition of employer encompasses both Dempsey’s
Adult Care Homes (a limited liability company) and Woods (an individual acting
in the interest of Dempsey’s).
4. The district court did not abuse its discretion by entering default
judgment without holding a hearing. A district court “may” conduct a hearing
“when, to enter or effectuate judgment, it needs to” conduct an accounting,
determine the amount of damages, establish the truth of any allegation by
evidence, or investigate any other matter. Fed. R. Civ. P. 55(b)(2).
Delgado’s retaliation claim fit squarely within the Earned Paid Sick Time
Act’s prohibitions, and her calculation of damages, which the district court
adopted, used the daily minimum penalty established by the Act. See Ariz. Rev.
Stat. Ann. § 23-364(B) (establishing a presumption of retaliation when an “adverse
action” is taken against a person “within ninety days of a person’s” assertion of a

-- 4 of 5 --

5
claim or right under the statute); id. § 23-364(A) (defining “retaliation” as
including a “reduction of hours”); id. § 23-364(G) (requiring any employer who
retaliates to pay “not less than one hundred fifty dollars for each day that the
violation continued or until legal judgment is final”). The district court had
adequate information from Delgado’s complaint, declaration, and briefing to
determine that retaliation occurred and to calculate damages without a hearing.
AFFIRMED.

-- 5 of 5 --