FINDINGS AND RECOMMENDATIONS
This matter came before the court on March 11, 2011, for hearing of plaintiff's amended motion for default judgment (Doc. No. 12). Scott Plamondon, Esq. appeared for the plaintiff. No appearance was made by or on behalf of the defendant.
At the conclusion of the hearing, the court directed plaintiff's counsel to file a supplemental brief addressing the legal standards applicable to motions for default judgment and the factors to be considered by the court pursuant to Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986), with an analysis of how the Eitel factors have been satisfied by plaintiff in this case. The court also directed plaintiff to provide a breakdown of attorney hours and rates so that the court can assess the reasonability of the amount claimed by plaintiff with respect to attorney fees. Plaintiff filed a supplemental memorandum of points and authorities on April 5, 2011 (Doc. No. 14), whereupon plaintiff's motion for default judgment was submitted for decision.
After considering plaintiff's argument and all written materials submitted in connection with plaintiff's motion, the undersigned recommends that plaintiff's motion be granted and that default judgment be entered against defendant.
Plaintiff California Association of Professional Firefighters (CAPF) is a California non-profit mutual benefit association established as a voluntary employee beneficiary association. CAPF is the sponsor of a long term disability plan (Plan) that is available to members of participating fire departments. The Plan does not provide benefits if similar benefits are available from another source or if the member is eligible for similar benefits. Due to the delays in receiving similar benefits, the Plan will provide a beneficiary with the full amount of benefits payable under the Plan, subject to the beneficiary's agreement to repay the amounts provided by the Plan upon the member's recovery of other benefits.
Defendant Lynn B. Bauman, who was a member of a participating fire department, applied for group membership in the Plan on August 2, 1990. By executing her application, plaintiff agreed to abide by the terms of the Plan. On March 28, 2002, defendant Bauman filed a claim for disability benefits under the Plan, alleging that she was disabled and stating that she was not working and had not worked since May 12, 1997. Defendant also executed an Obligations and Benefit Election form before a notary public. On the form, defendant elected to receive un-reduced benefit payments from the Plan and agreed to immediately reimburse the Plan for any amounts construed as "benefits from other sources," as defined in the Plan. From July 2002 through May 2003, plaintiff provided defendant Bauman with long-term disability benefits in the amount of approximately $44,268.00.
Plaintiff subsequently learned that defendant Bauman received a retroactive disability date of June 2002 at a percentage of her pre-disability wages. Defendant was therefore obligated to repay plaintiff $23,011.00 for benefits paid by plaintiff during the period to which defendant's retroactive benefits applied. On July 29, 2006, defendant Bauman acknowledged in writing that she had received retroactive retirement payments and confirmed her obligation to repay the Plan. Defendant promised to make payments of $1,000 monthly until the total amount of $23,011.00 was paid. From November 2006 through September 2009, defendant made sporadic payments in various amounts that totaled $6,000.00. With each payment, defendant Bauman explained her financial situation but stated her intent to repay the full amount. However, defendant made no further payments after September 2, 2009. Plaintiff demanded full repayment on various dates in 2009 and in 2010 but defendant Bauman did not pay the $17,011.00 that remained unreimbursed.
Plaintiff brought this action on August 25, 2010, for the purpose of collecting the amount still owed by defendant. Jurisdiction arises under ERISA.
Although service of process was effected by personal service on defendant , she failed to appear in the action. On January 6, 2011, plaintiff requested entry of default against defendant Bauman. (Doc. No. 5.) The Clerk entered default against defendant Bauman on January 7, 2011. (Doc. No. 6.) On January 27, 2011, plaintiff filed its initial application for entry of default judgment against defendant. (Doc. No. 7.) The motion includes proof of service on defendant. (Doc. No. 7 at 3.) Plaintiff's amended motion for default judgment was also served on defendant. (Doc. No. 12 at 3.) Defendant did not file opposition to plaintiff's motion and did not appear at the hearing. Defendant did not respond to plaintiff's supplemental brief, which was served on defendant on April 5, 2011. (Doc. No. 14 at 9.)
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 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). 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 ...