Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Xerox Corp. v. Simply Smashing, Inc.

United States District Court, Ninth Circuit

June 24, 2013

XEROX CORPORATION, Plaintiff,
v.
SIMPLY SMASHING, INC., Defendant.

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT BE GRANTED (ECF No. 10, 18)

STANLEY A. BOONE, District Judge.

I.

INTRODUCTION

Plaintiff Xerox Corporation filed a motion for default judgment on May 1, 2013. (ECF No. 10.) Defendant has not opposed the motion for default judgment. This matter was referred to the undersigned magistrate judge for findings and recommendations pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 303.

A hearing on Plaintiff's motion for default judgment took place on June 5, 2013. Marlene Habbell made a special appearance for Plaintiff, and Defendant did not appear. At the hearing, Plaintiff was ordered to file supplemental briefing regarding the interest sought in the complaint and a motion for attorney fees. On June 20, 2013, Plaintiff filed declarations addressing the amount of interest sought and waiving attorney fees.

Having considered the moving papers and declarations, and noting that Defendant has not filed an opposition, the Court recommends that Plaintiff's motion for default judgment be GRANTED.

II.

BACKGROUND

This breach of contract action, based upon diversity jurisdiction, was filed on March 18, 2013. (ECF No. 1.) Defendant was properly served with the complaint, but failed to respond within the time prescribed by the Federal Rules of Civil Procedure. On April 25, 2013, default was entered against Defendant Simply Smashing, Inc. (ECF No. 8.) On May 1, 2013, Plaintiff filed a motion for default judgment. (ECF No. 10.)

Plaintiff's complaint alleges that on or about June 30, 2009, Plaintiff and Defendant Simply Smashing entered into a non-cancellable written equipment finance lease ("the agreement"). (Compl. ¶ 5, ECF No. 1.) Plaintiff contends that it has performed all the terms and conditions of the agreement, but Defendant defaulted in their obligations about May 19, 2012, by failing to make payments as required under the agreement. (Id. at ¶¶ 6, 7.) Plaintiff has now declared the entire amount of unpaid rental under the terms of the agreement immediately due and payable. (Id. at ¶ 7.) Under the agreement, the amount of the rental and other charges together with interest now due is $351, 137.85. (Id. at ¶ 8.)

III.

LEGAL STANDARD FOR DEFAULT

Pursuant to Federal Rules of Civil Procedure 55, obtaining a default judgment is a two-step process. Yue v. Storage Technology Corp., No. 3:07-cv-05850, 2008 WL 361142, *2 (N.D. Cal. Feb. 11, 2008). Entry of default is appropriate as to any party against whom a judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and where that fact is made to appear by affidavit or otherwise. Fed.R.Civ.P. 55(a). After entry of default, the plaintiff can seek entry of default judgment. Fed.R.Civ.P. 55(b)(1) and (2).

An entry of default judgment is governed by Federal Rule of Civil Procedure 55, which allows the court to conduct hearings when necessary to enter or effectuate judgment. The decision to grant a motion for entry of default judgment is within the discretion of the court. PepsiCo, Inc. v. California Security Cans, 238 F.Supp. 1172, 1174 (C.D. Cal. 2002). The Ninth ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.