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Phillips 66 Co. v. Grainer

United States District Court, E.D. California

November 7, 2014

PHILLIPS 66 COMPANY, Plaintiff,
v.
EDWARD S. GRAINER, et al., Defendant

For Phillips 66 Company, Plaintiff: Dawn Ceizler, Law Offices of Dawn Ceizler, Walnut Creek, CA.

ORDER DENYING MOTION FOR ATTORNEYS' FEES WITHOUT PREJUDICE (Doc. 17)

Barbara A. McAuliffe, UNITED STATES MAGISTRATE JUDGE.

ORDER TO SHOW CAUSE WHY DEFAULT JUDGMENT SHOULD NOT BE SET ASIDE

I. Introduction

The complaint in this case filed on November 21, 2013 alleges a breach of contract. (Doc. 2). Defendant, Edward Grainer, was served with a copy of the summons and complaint on December 18, 2013. (Doc. 6). Mr. Grainer did not appear in this action and default was entered against him on March 10, 2014. (Doc. 8).

Subsequently, Plaintiff filed a Motion for Default Judgment by the Clerk of the Court on May 23, 2014 pursuant to Fed.R.Civ.P. 55(b)(1).[1] (Doc. 14). Default judgment was entered by the Clerk on July 9, 2014. (Doc. 15). Pending before the Court is Plaintiff's Motion for Attorneys' Fees in the amount of $12, 536.25, which was filed after default judgment was entered.

A review of the request for attorneys' fees reveals that the motion is deficient. For the reasons set forth below, the motion will be DENIED WITH OUT PREJUDICE. Additionally, the Court has some concerns regarding whether the default judgment issued by the Clerk was proper. Accordingly, no later than December 12, 2014, Plaintiff shall show cause why the default judgment should not be set aside pursuant to Fed.R.Civ.P. 60(b), and an amended motion for default judgment be filed.

II. Discussion

A. Issues Related to the Default Judgment

The Clerk of the Court may enter default judgment if the Plaintiff's claim is for a sum certain or when a sum can be made certain by computation. Fed.R.Civ.P. 55(b) (1). However, establishing whether a case is a sum certain under Rule 55(b)(1) is a high standard. " A claim is not a sum certain unless there is no doubt as to the amount which Plaintiff is entitled as a result of the defendant's default." (emphasis added) Franchise Holding II, LLC v. Huntington Restaurants Group Inc., 375 F.3d 922, 928 (9th Cir. 2004) citing KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 19 (1st Cir. 2003).

In this case, the Clerk's office issued a default judgment awarding Plaintiff $110, 238.67. This amount includes the principal sum of $78, 631.64 plus prejudgment interest in the amount of $31, 064.88 which continues to accrue at the rate of $21.54 per day, and costs in the amount of $542.15. (Doc. 15). The award was consistent with Plaintiff's request in the amended application for default judgment.[2] (Doc. 14). In support of the motion, Plaintiff submitted a declaration wherein counsel indicates she has calculated the damages pursuant to a breach of contract. However, Plaintiff has not established that the amount requested is proper for the following reasons:

1) It is not clear how counsel arrived at the figures for the amount of damages, nor is it clear what supporting documentation was relied upon in formulating the calculations;
2) Plaintiff requested pre-judgment interest pursuant to California Civil Code § 3289, however, there is no explanation why this California statute applies as opposed to California Civil Code § 3287, or another California statute;
3) Plaintiff asserts that post-judgment interest accrues at $21.54 per day, with no explanation on how ...

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