FINDINGS & RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
On December 19, 2013, this court held a hearing on plaintiff's motion for default judgment against non-taxpayer defendant Alan S. Coleman (hereinafter "defendant"). Lee Perla appeared telephonically for plaintiff and no appearance was made by defendant. After considering the briefing in support of the motion, the undersigned recommends that plaintiff's motion for default judgment be granted.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On October 9, 2012, the United States filed this action seeking to reduce to judgment federal tax assessments against Alan Coleman for outstanding federal income tax liabilities for tax years 2000, 2001, 2002, 2003, 2004, 2005 and 2006. Compl. ¶¶ 14-19.
The complaint alleges that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1340 and 1345 and 26 U.S.C. (Internal Revenue Code) § 7402. Id . ¶ 3. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1396 because defendant resides in this judicial district. Id . ¶ 4.
With regard to defendant, the complaint alleges that a duly authorized delegate of the Secretary of the Treasury made timely federal tax assessments for the 2000, 2001, 2002, 2003, 2004, 2005 and 2006 tax periods against defendant. Id . ¶ 15. Timely notice of and demand for payment of those assessments has been given to defendant as required by Section 6303 of the Internal Revenue Code. Id . ¶ 17. Despite notice and demand for payment of the assessments, defendant has refused or neglected to pay the tax assessments against him and there remains due and owing to the United States on those assessments the total sum of $526, 473.35, plus statutory interest and other statutory additions that continue to accrue as provided by law. Id . ¶ 19; see also ECF No. 20-1 at 5 (providing an updated sum of $543, 878.88 as of October 31, 2013).
Both defendants Alan S. Coleman and Staci E. Coleman were properly served. On March 27, 2013, default was entered against Alan S. Coleman and Staci E. Coleman for failure to file a responsive pleading. To date, neither defendant has appeared in this action.
On November 7, 2013, plaintiff filed a motion for default judgment seeking relief as to defendant Alan S. Coleman. ECF No. 20. Defendant did not file a response thereto.
I. Whether Default Judgment Should be Entered
Plaintiff seeks default judgment on its Second Claim for Relief against defendant, pursuant to Federal Rules of Civil Procedure 54 and 55, and Local Rules 230 and 302(c)(19).
Federal Rule of Civil Procedure 55(b)(1) provides
If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation, the clerk - on the plaintiff's request, with an affidavit showing the amount due - must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person.
Fed. R. Civ. P. 55(b)(1). However, 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 Restaurants Group, Inc. , 375 F.3d 922, 929 (9th Cir. 2004). In this case, plaintiff's claim for damages in the amount of $543, 878.88 as of October 31, 2013 is not a sum certain where no doubt remains as to the amount of damages owed as a result of the default. Accordingly, entry of default judgment under Rule 55(b)(1) is not proper.
Federal Rule of Civil Procedure 55(b)(2) provides that "[i]n all other cases [other than those in which the clerk of the court may enter default judgment], the party must apply to the court for a default judgment." Fed.R.Civ.P. 55(b)(2). It is within the sound discretion of the district court to grant or deny an application for default judgment pursuant to Rule 55(b)(2). Aldabe v. Aldabe , 616 ...