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Charkchyan v. EZ Capital, Inc.

United States District Court, C.D. California

June 11, 2015

MANUEL CHARKCHYAN, Plaintiff,
v.
EZ CAPITAL, INC., Defendant.

ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT EZ CAPITAL, INC. [25]

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

On May 8, 2014, Manuel Charkchyan ("Plaintiff"), filed suit against Defendant EZ Capital, Inc., for sending unsolicited advertisements to his cellular telephone in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., ("TCPA"). Defendant failed to answer, default was entered, and Plaintiff now moves for entry of default judgment. For the reasons discussed below, the Court GRANTS Plaintiff's Motion.[1] (ECF No. 25.)

II. FACTUAL ALLEGATIONS

Plaintiff brought this action against EZ Capital for transmitting advertisements via text message to his cellular telephone in violation of the TCPA. On March 27, 2014, EZ Capital transmitted its first text message to Plaintiff, which read:

Need help with Cash Flow For your business or simply just some extra working capital? Apply Today, Can Fund Tomorrow, IT'S THAT EZ! CALL NOW! (888) 353-6557

(Charkchyan Decl. ¶ 4, ECF No. 25.) In April 2014, EZ Capital transmitted five more unsolicited advertisements via text message to Plaintiff's cellular telephone. ( Id. ¶¶ 4-9.) Plaintiff's cellular telephone provider charged him for each text message he received from EZ Capital. ( Id. ¶ 10.) Plaintiff claims that he never had any contact with EZ Capital prior to receiving these text messages. ( Id. ¶ 7.) Additionally, Plaintiff alleges that he has never visited any location operated by EZ Capital, that he did not provide his phone number to EZ Capital, and that he had never heard of EZ Capital. ( Id. ¶ 3.)

On May 8, 2014, Plaintiff filed suit, alleging a violation of the TCPA for EZ Capital's transmission of these unsolicited text messages to his cell phone by an Automatic Telephone Dialing System ("ATDS"). (Compl. ¶¶ 1, 15.) Plaintiff properly served EZ Capital on May 28, 2014, requiring EZ Capital to answer by June 18, 2014. (ECF No. 9.) Proof of Service for EZ Capital was filed on July 22, 2014. ( Id. ) After EZ Capital failed to appear or otherwise respond to the Complaint, Plaintiff requested an entry of default, which the Clerk of Court entered according to Federal Rule of Civil Procedure 55(a) on March 16, 2015. (ECF No. 22.) On March 23, 2015, Plaintiff moved for default judgment. (ECF No. 25.) That Motion is now before the Court for consideration.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 55(b) authorizes a district court to grant default judgment after the Clerk enters default under Rule 55(a). Local Rule 55-1 requires that the movant submit a declaration establishing (1) when and against which party default was entered; (2) identification of the pleading to which default was entered; (3) whether the defaulting party is a minor, incompetent person, or active service member; and (4) that the defaulting party was properly served with notice.

A district court has discretion whether to enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Upon default, the defendant's liability generally is conclusively established, and the well-pleaded factual allegations in the complaint are accepted as true. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-19 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)).

In exercising its discretion, a court must consider several factors, including: (1) the possibility of prejudice to plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake; (5) the possibility of a dispute concerning material facts; (6) whether the defendant's default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

IV. ...


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