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Hauschild v. National Financial Systems

May 29, 2009

SHANE HAUSCHILD, PLAINTIFF,
v.
NATIONAL FINANCIAL SYSTEMS, INC., DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff's application for entry of default judgment against defendant National Financial Systems, Inc., filed April 20, 2009, was submitted on the record. Local Rule 78-230(h). Upon review of the motion and the supporting documents, and good cause appearing, the court issues the following order.

BACKGROUND

On January 13, 2009, plaintiff filed the underlying complaint in this action against defendant, alleging defendant violated the Fair Debt Collection Practices Act ("FDCPA") (15 U.S.C. § 1692) and the California Rosenthal Act (Cal. Civ. Code § 1788). The summons and complaint were served on February 2, 2009, by U.S. Mail pursuant to state law. Cal. Code Civ. Proc. §§ 416.10, 415.40, Fed. R. Civ. P. 4(h)(1) (Affidavit, filed February 14, 2009). Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction). Defendant has failed to file an answer or otherwise appear in this action. On March 10, 2009, the clerk entered default against defendant National Financial Systems, Inc.

The instant motion for default judgment and supporting papers were served by mail on defendant at its last known address. Defendant failed to file an opposition to the motion for entry of default judgment. Plaintiff seeks an entry of default judgment for declaratory and injunctive relief, actual damages, statutory damages, and costs and attorneys' fees, all in an unspecified amount.

DISCUSSION

Entry of default effects an admission of all well-pleaded allegations of the complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 1977). The court finds the well pleaded allegations of the complaint state a claim for which relief can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). The memorandum of points and authorities and affidavits filed in support of the motion for entry of default judgment also support the finding that plaintiff is entitled to the relief requested, other than the fact that there is no request for a sum certain or specific injunctive relief. Otherwise, there are no policy considerations which preclude the entry of default judgment of the type requested. See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).

Courts generally disfavor default judgments, however, especially those involving large sums. See In Re Roxford Foods, Inc., 12 F.3d 875, 879 (9th Cir.1993);10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2681. "The general rule of law is that upon default factual allegations of the complaint, except those relating to amount of damages, will be taken as true." Geddes, 559 F.2d at 560 (citing Fed. R. Civ. P. Rules 8(d), 55(b)) (emphasis added); see also Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir.2002) (same).

Granting or denying default judgment is discretionary. See Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir.1986). Several factors may be relevant. See Eitel, 782 F.2d at 1471-72 (9th Cir.1986).*fn1

"A judgment by default may not be entered without a hearing on damages unless ... the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits." Dundee Cement, 722 F.2d at 1323 (citing Geddes); Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir.1981) (no hearing necessary when documents show judgment amount based on a definite figure); see also Fed. R. Civ. P. 55(b)(2) (the district court has the discretion to conduct or refuse a hearing on default judgment). A hearing on the issue of damages is not required as long as the court finds there is a basis for the damages specified. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997). Affidavits or other documentary evidence is sufficient to evaluate the fairness of the amount requested. Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993).

A. Declaratory and Injunctive Relief

Plaintiff states only that he seeks "[d]eclaratory and injunctive relief and judgment that Defendant's conduct violated the FDCPA, and declaratory and injunctive relief for the Defendant's violations of the California FDCPA." Mot. at ¶ 10. Although the court can declare that defendant's conduct violated the FDCPA, a judgment against defendant will necessarily have the same effect. Plaintiff does not specify how he wants defendant enjoined. Therefore his motion cannot be granted at this time. In a renewed motion, plaintiff will need to specify the injunctive relief he seeks, and it must be supportable by the statutes underpinning his motion.

B. Damages

Plaintiff does not specify the amount of statutory or ...


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