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Eset, LLC v. Terry Bradshaw

July 8, 2011

ESET, LLC,
PLAINTIFF,
v.
TERRY BRADSHAW, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER GRANTING PLAINTIFF'SAPPLICATION FOR DEFAULT JUDGMENT (ECF No. 13.)

Presently before the Court is Plaintiff ESET, LLC's application for default judgment by clerk against Defendants Terry Bradshaw, Oneworld Office, Oneworld Office Corp., Oneworld Techstick, Oneworld Security PLC Corp., Oneworld Trailer Corp., TBU Security Solutions Inc., and RAD Media Corp. (Appl. for Default J., ECF No. 13.) For the reasons set forth below, Plaintiff's application for default judgment is GRANTED.

BACKGROUND

On June 29, 2010, Plaintiff filed a complaint against Defendants alleging, among other things, breach of contract. (Complaint, ECF No.1.) Defendants have failed to respond. On January 24, 2011, the clerk of the court entered Defendants' default under Rule 55(a). (ECF No. 7.) Subsequently, Plaintiff filed the present application for default judgment, seeking $168,809.45 in unpaid principal, pre-judgment interest, and costs. (Appl. for Default J.)

DISCUSSION

Plaintiff's application for default judgment was filed pursuant to Federal Rule of Civil Procedure 55(b)(1). Under Rule 55(b)(1), default judgment may be entered by the clerk "if the plaintiff's claim is for a sum certain." Fed. R. Civ. P. 55(b)(1). A sum is not certain "unless no doubt remains as to the amount to which a plaintiff is entitled as a result of the defendant's default." Franchise Holding II, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922, 929 (9th Cir.2004). In cases where Rule 55(b)(1) does not apply, the Court may enter default judgment pursuant to Rule 55(b)(2). The Court finds it appropriate to analyze Plaintiff's application under Rule 55(b)(2).

1. Legal Standard

Federal Rule of Civil Procedure 55 permits a court to enter default judgment. A court is to grant or deny default judgment at its discretion. See Alan Neuman Prods., Inc. v. Albright, 862 F.2d 1388, 1392 (9th Cir. 1988) (citing Haw. Carpenters' Trust Funds v. Stone, 794 F.2d 508, 511--12 (9th Cir. 1986); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980)). The Ninth Circuit has set out seven factors for a court to consider when exercising this discretion:

(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 (citation omitted). When weighing these factors, well-pled factual allegations not related to the amount of damages are taken as true. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917--18 (9th Cir. 1987) (quoting Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)); see also Fed. R. Civ. P. 8(b)(6). To prove damages, a plaintiff may submit declarations or the Court may hold an evidentiary hearing. See Affinity Group, Inc. v. Balser Wealth Mgmt., 2007 WL 1111239, at *1 (S.D. Cal. Apr. 10, 2007).

2. Analysis

A. Possibility of Prejudice to Plaintiff

Eitel's first factor looks to whether a plaintiff would suffer prejudice if its motion were denied. Eitel, 782 F.2d at 1471; PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). In this case, Plaintiff would suffer prejudice if the motion were denied; Plaintiff has no other ...


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