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Bostik, Inc v. J.E. Higgins Lumber Co.; Golden

January 10, 2013

BOSTIK, INC., PLAINTIFF,
v.
J.E. HIGGINS LUMBER CO.; GOLDEN STATE FLOORING, INC.; AND DOES 1- 50, INCLUSIVE,
DEFENDANTS



ORDER DENYING APPLICATION FOR DEFAULT JUDGMENT

United States District Court rthern District of California

For the No

I. INTRODUCTION

Now before the court is Plaintiff Bostik, Inc.'s ("Plaintiff") 18

Application for Default Judgment against Defendant J.E. Higgins 19 Lumber Co. ("Defendant"). ECF No. 27 ("Appl."). Defendant has 20 neither appeared in this action nor opposed Plaintiff's 21 Application. Pursuant to Civil Local Rule 7--1(b), the Court finds 22 this matter appropriate for resolution without oral argument. As 23 discussed below, Plaintiff's Application is DENIED without 24 prejudice. 25 26

II. BACKGROUND 27

Plaintiff is a manufacturer and supplier of industrial 28 adhesives, among other things. Defendant, a hardwood flooring company, purchased adhesive products from Plaintiff in twenty-one 2 transactions, each enshrined in the parties' purchase orders and 3 invoices (collectively, the "Agreements"). ECF No. 1 ("Compl.") ¶¶ 4 7-10; ECF No. 1-2 ("Thompson Decl."). The Agreements are governed 5 by Plaintiff's Terms and Conditions of Sale ("Terms"). Thompson 6 Decl. Ex. B. Plaintiff alleges that it performed per the 7 Agreements, but Defendant never paid. Compl. ¶¶ 7-10. Plaintiff 8 therefore sued Defendant for breach of contract. Compl. ¶¶ 11-15. 9

Plaintiff served Defendant with the Summons and Complaint on 10 August 1, 2012. ECF No. 6-1 (Proof of Service) ("POS"). Defendant never responded or appeared in this action. The Clerk of Court 12 entered default against Defendant on October 5, 2012, ECF No. 21, 13 and Plaintiff served the Clerk's notice of entry of default on 14 Defendant that same day. ECF No. 22. On October 17, 2012, 15

Plaintiff served Defendant with a copy of the present Application 16 and other papers. ECF No. 27-5. Now Plaintiff seeks default 17 judgment for a total of $680,593.64, comprised of: (1) $590,946.27 18 in unpaid contractual fees under the Agreements; (2) $70,913.55 in 19 contractual interest, based on the Terms' requirement that 20

Defendant pay the maximum allowable interest under Wisconsin law on 21 unpaid contractual fees; and (3) $18,733.82 in attorneys' fees, 22 costs, and expenses, per the Terms' requirement that Defendant pay 23

Plaintiff's attorneys' fees and other costs if Plaintiff is forced 24 to recover unpaid fees from Defendant. Appl. at 2-3. Defendant 25 has not opposed Plaintiff's Application. 26

III. LEGAL STANDARD 2

Under Federal Rule of Civil Procedure 55(b)(2), a party may 3 apply to the Court for entry of default judgment after the Clerk of 4 Court has entered default. The Court's decision to enter default 5 judgment is discretionary. Aldabe v. Aldabe, 616 F.2d 1089, 1092 6 (9th Cir. 1980). As a preliminary matter, the Court must "assess 7 the adequacy of the service of process on the party against whom 8 default judgment is requested." Bd. of Trs. of the N. Cal. Sheet 9 Metal Workers v. Peters, No. C 00-0395 VRW, 2000 U.S. Dist. LEXIS 10 19065, at *2 (N.D. Cal. Jan. 2, 2001).

If the Court determines that service was sufficient, its 12 decision to enter default judgment may be guided by the following 13 factors: (1) the possibility of prejudice to the plaintiff; (2) the 14 merits of the plaintiff's substantive claim; (3) the sufficiency of 15 the complaint; (4) the sum of money at stake in the action; (5) the 16 possibility of a dispute concerning material facts; (6) whether the 17 default was due to excusable neglect; and (7) the strong policy 18 underlying the Federal Rules of Civil Procedure favoring decisions 19 on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 20 1986). When the Court assesses the Eitel factors, all well-pleaded 21 allegations regarding liability are taken as true, except with 22 respect to the damages requested. Fair Hous. of Marin v. Combs, 23 285 F.3d 899, 906 (9th Cir. 2002). 24 25

IV. DISCUSSION

A.Adequacy of ...


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