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Rohrer Brothers,Inc v. Super Fresh Wholesale Foods Inc.

March 30, 2011

ROHRER BROTHERS,INC., PLAINTIFF,
v.
SUPER FRESH WHOLESALE FOODS INC., ET AL.,. DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

TEMP

FINDINGS AND RECOMMENDATIONS

Plaintiff's motion for default judgment was submitted on the papers. Plaintiff's counsel has submitted a declaration wherein he avers that on or about February 8, 2011, defendant Howard Hartman, III, telephoned counsel and inquired as to why he was being sued. Defendant advised plaintiff's counsel that he intended to seek legal counsel in connection with defending this action. The court's docket reflects that defendants have not filed any motion for relief from the Clerk's Entries of Default despite being served with notices of the request for entries of default. Nor has any opposition to plaintiff's motion for entry of default judgment been filed.

For the reasons set forth below, the undersigned recommends that plaintiff's motion be granted and that default judgment be entered against defendants.

BACKGROUND

Plaintiff Rohrer Brothers, Inc. is a dealer in perishable agricultural commodities with a principal place of business located in Sacramento, California. During the months of May 24, 2010 through September 7, 2010, plaintiff sold to defendants in interstate commerce various wholesale lots of perishable agricultural commodities. After all credits, the principal sum remaining due to plaintiff is $10,323.01.

The record reflects that defendants were properly served with process on January 7, 2011 and defaults were entered on February 1 and 9, 2011. (Doc. Nos. 7, 14, 16.) On March 8, 2011, plaintiff filed a motion for default judgment. (Doc. No. 18.)

LEGAL STANDARDS

Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for entry of default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).

Where damages are liquidated, i.e., capable of ascertainment from definite figures contained in documentary evidence or in detailed affidavits, judgment by default may be entered without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).

Granting or denying default judgment is within the court's sound discretion.

Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by the court are (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

Eitel, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice ΒΆ ...


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