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Suzanne D. Jackson v. William Fischer.


November 5, 2012


The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

United States District Court Northern District of California


In this civil action, Plaintiff Suzanne D. Jackson, moves for Entry of Default Judgment 19 against Defendant Upper Orbit, LLC ("Defendant"), seeking $13,516,968 in damages. This 20 motion was referred to the undersigned Judge for a report and recommendation. Having 21 reviewed the papers submitted in support of Plaintiff's request for default judgment, the Court 22 orders Plaintiff to submit additional briefing in support of its motion for default judgment. 23


Defendant Upper Orbit is a Minnesota limited liability company. (Second Amended Complaint ("SAC"), Dkt. No. 113, ¶ 13.) Its sole member is co-defendant William Fischer. 26

(Id.) Defendant is one of 20 business entities, executives, and investors sued for 27 misrepresentation and breach of fiduciary duty relating to a series of financial transactions. 28

(Id. ¶¶ 2-21, 72-150.) After Defendant failed to file a responsive pleading to the SAC, Default

was entered against Defendant on September 24, 2012. (Dkt. No. 142 at 1.) The suit against 2

Defendant Fischer, President of Upper Orbit, has been stayed pursuant to a bankruptcy stay in 3 place for him. 11 U.S.C. § 362; (Dkt. No. 124 at 1.) 4

54-71.) First, on February 18, 2008, Plaintiff loaned Defendant $1,000,000 at an 8% interest 6 rate in exchange for 40% of Defendant's profits from its trades, loans, and investments. (Id. ¶ 7

December 31, 2009." (Dkt. No. 148 at 4.) Note 1 indicates that the Defendant "agree[d] to 9 make quarterly interest payments" of $20,000 and that "[i]f any installment under this Note is 10 not paid when due and remains unpaid... the principal and accrued interest thereon shall at 11 once become due and payable at a rate of Five (5%) percent per month thereafter." (Dkt. No. 12

at the rate of 5% per month would accrue-a term proposed and by [sic] Upper Orbit to 14 assure the plaintiff that it would not default." (Dkt. No. 148 at 4.)Note 1 was signed by Mr. 15

Fisher as Defendant's President. (Dkt. No. 148-2 at 4.) Plaintiff "agreed to the proposal" 16 because of Mr. Fischer's "detailed" and "false" representations of his investing experiencing. 17

(SAC ¶ 54.) Second, on April 25, 2008, Plaintiff loaned Defendant an additional $140,000 at 18 an 8% interest rate. (Dkt. No. 148 at 4.) The loan was made subject to another Promissory 19

Though Defendant made two initial interest payments for Note 1, it went into default

21 on June 6, 2008. (Dkt. No. 148 at 4.) "[N]o payment was ever made" on Note 2. (Id.) 22

Fischer indicated that he did not have "sufficient liquidity," and he "proposed a restructuring" 24 of the loans. (Id. ¶ 56 (internal quotations omitted).) Fischer "presented claims of progress to 25 assuage her concerns about her investments." (Id. ¶ 63.) Plaintiff unsuccessfully tried "to 26 obtain information about the whereabouts and status of her investments." (Id. ¶ 64-65.). 27

August 2008. (Id. ¶ 56.)

Plaintiff made two loans to Defendant that are the subject of this Motion. (Id. ¶¶ 33, 53.) The "loan was made subject to a Promissory Note ("Note 1")" and "was due on 8

148-2 at 4.) Plaintiff maintains that these terms provide that "in the event of default[,] interest

Note ("Note 2") and "was due on December 31, 2009." (Id.) 20

In the summer of 2008 Plaintiff requested that her funds be returned. (Id. ¶ 57.)

Fisher "made new investments and/or loans in the plaintiff's behalf" through Defendant until 28

Plaintiff now moves for default judgment against Defendant in the amount of $13,516,968 in damages. (Dkt. No. 148 at 5.) 3

After entry of default, a court may grant default judgment on the merits of the case.


See Fed. R. Civ. P. 55. In the Ninth Circuit, a court's analysis of a motion for default 6 judgment is guided by the standard set forth in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th 7

Accordingly, Plaintiff is ordered to file a supplemental brief addressing the Eitel factors. See 9

Cir. 1986). Plaintiff has not addressed the Eitel factors in her motion for default judgment. 8

Alan Neuman Productions, Inc., v. Albright, 862 F.2d 1388, 1392 (discussing the legal 10 sufficiency of the allegations contained in the complaint necessary for entry of default 11 judgment). 12

motion for default judgment. First, Plaintiff's counsel submitted an Excel Spreadsheet that 14

United States District Court Northern District of California

The Court requires further briefing regarding two additional aspects of Plaintiff's

"reflects calculations of interest ... made by programing the cells for the principal, interest and 15 relevant dates to produce the calculated totals," but the Spreadsheet does not show the 16 underlying formulas used to derive those calculations. (Dkt. No. 148-3 at 2, 5.) Regarding 17

148 at 4.).) Regarding Note 2, Plaintiff maintains Defendant owes $189,679 as of October 3, 19

2012. (Id. at 4-5.) The Court requires additional information regarding the underlying 20 formulas; specifically, whether the interest rate was calculated by month or by year, and when 21 or at what intervals the interest was compounded. Without this information the record 22 provides an insufficient basis for determining an appropriate award. 23

24 default judgment with respect to Defendant Upper Orbit. See Fed. R. Civ. P. 54(b). In Frow 25

v. De La Vega, 82 U.S. 552 (1872), the Supreme Court held that "where a complaint alleges 26 that defendants are jointly liable and one of them defaults, judgment should not be entered 27 against the defaulting defendant until the matter has been adjudicated with regard to all 28 defendants." In re First T.D. & Inv., Inc., 253 F.3d 520, 532 (9th Cir. 2001). Courts take

Note 1, Plaintiff maintains that Defendant owes $13,327,289 as of October 3, 2012. (Dkt. No. 18

Second, Plaintiff has not addressed that in this multi-defendant action it only seeks

varying views on Frow's injunction against entering default judgments while claims remain 2 pending against other defendants. See Shanghai Automation Instrument Co., Ltd. v. Kuei, 3

194 F.Supp.2d 995, 1008 (N.D. Cal. 2001) (discussing the various approaches courts have 4 taken in these cases). Plaintiff shall address this issue, explain whether Plaintiff intends to 5 hold the non-defaulting defendants jointly and severally liable, and discuss why judgment 6 under Rule 54(b) is proper. 7


Accordingly, Plaintiff shall file a supplemental brief addressing these issues by

November 13, 2012. The hearing on Plaintiff's Motion for Default Judgment is reset to 10

November 29, 2012 at 9:00 a.m. 11

Plaintiff has not yet served Defendant with a copy of the motion for default judgment.

Plaintiff shall serve a copy of the motion for default judgment and this Order on Defendant

within five days of this Order and shall file a proof of service with this Court. 14



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