                                                                              FILED
                              NOT FOR PUBLICATION                               OCT 7 2011

                                                                           MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



TAMAR TESSLER, an individual,                       No. 10-55564

                Plaintiff - Appellee,               D.C. No. 2:08-cv-05695-R-RC

    v.
                                                    MEMORANDUM *
DAN ZADOK, an individual,

                Defendant - Appellant.



                      Appeal from the United States District Court
                         for the Central District of California
                       Manuel L. Real, District Judge, Presiding

                            Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

         In this diversity action, Dan Zadok appeals pro se from the district court’s

order denying his motion to vacate a default judgment entered in favor of Appellee

Tamar Tessler. We have jurisdiction under 28 U.S.C. § 1921. We review for an

abuse of discretion a district court’s denial of a motion to set aside a default

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judgment. TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 695 (9th Cir.

2001) (“TCI”). We vacate and remand.

      In seeking to vacate the default judgment, Zadok submitted a declaration

stating that he did not receive service of process and that he has no roommate,

contradicting the process server’s receipt. The record reflects neither the evidence

nor the law on which the district court based its decision to deny Zadok’s motion to

set aside the default judgment. The district court may have denied the motion by

considering Zadok’s evidence and the factors set forth in Falk v. Allen, 739 F.2d

461 (9th Cir. 1984) (per curiam), or alternatively in S.E.C. v. Internet Solutions for

Business Inc., 509 F.3d 1161, 1165 (9th Cir. 2007). However, because we are

unable to discern either the legal or the factual bases for the district court’s

decision, we are unable to assess whether the district court abused its discretion.

See United States v. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (in assessing

abuse of discretion, this Court must determine first whether the district court

identified the correct legal rule to apply and second whether the application of that

rule was illogical, implausible, or without support in the record); see also TCI, 244

F.3d at 696 (“[I]n applying the general terms of Rule 60(b) to default judgments,

this Court has emphasized that such judgments are ‘appropriate only in extreme

circumstances; a case should, whenever possible, be decided on the merits.’”


                                            2                                      10-55564
(quoting Falk, 739 F.2d at 463)). Accordingly, we vacate and remand for further

proceedings consistent with our disposition.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




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