United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
to Local Rule 302(c)(19), this matter came before the court
on January 13, 2016, for hearing of plaintiff’s motion
for default judgment. ECF No. 23. Attorney Jim Price appeared
on behalf of the plaintiff. No appearance was made on behalf
of the defendant. At that time oral argument was heard and
the motion was taken under submission.
review of the motion and the supporting documents, and good
cause appearing, THE COURT FINDS AS FOLLOWS:
AND PROCEDURAL BACKGROUND
complaint alleges as follows. Plaintiff had a debt with
Sutter Delta Medical Center in the amount of $350.06. ECF No.
1 at 1. On August 20, 2014, plaintiff paid that
debt in full. Id. On August 23, 2014, plaintiff sent
defendant, Grant & Weber, Inc., a letter showing proof of
plaintiff’s satisfaction of her debt and demanding that
the defendant cease contacting plaintiff. Id. On
December 1, 2014, defendant sent plaintiff a letter seeking
to collect “an amount which was not authorized by the
agreement creating the debt or permitted by law.”
Id. at 2.
April 24, 2015, plaintiff commenced this action by filing a
complaint and paying the required filing fee. ECF No. 1.
Plaintiff’s complaint alleges claims for violation of
the Rosenthal Fair Debt Collection Practices Act,
(“RFDCPA”), California Civil Code §§
1788, et seq., the Fair Debt Collection Practices
Act, (“FDCPA”), 15 U.S.C. Â§ 1692, et
seq., negligence and negligent training. Id. at
3-6. Plaintiff’s complaint seeks statutory, actual and
punitive damages, as well as reasonable attorney’s fees
and costs. Id. at 6.
summons and complaint were served on the defendant by
personal service on May 12, 2015. ECF No. 5; Fed.R.Civ.P.
4(e)(2); Pacific Atlantic Trading Co. v. M/V Main
Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default
judgment void without personal jurisdiction). On July 20,
2015, plaintiff filed a notice of settlement. ECF No. 6.
However, on September 14, 2015, plaintiff filed a request for
entry of default, (ECF No. 8), and the clerk entered
default against defendant on September 15, 2015. ECF No. 10.
filed a motion for default judgment on October 28, 2015, but
incorrectly noticed the motion for hearing before the
assigned District Judge. ECF No. 13. On November 16, 2015,
plaintiff filed the pending motion for default judgment, and
noticed the matter for hearing before the
undersigned. ECF No. 17. Plaintiff’s request for
entry of default and the instant motion for default judgment
and supporting papers were served by mail on the defendant.
ECF Nos. 8-2 & 20. Plaintiff seeks an entry of default
judgment on plaintiff’s claims that the defendant
violated the FDCPA and the RFDCPA and seeks $2, 000 in
statutory damages in addition to reasonable attorney’s
fees and costs. ECF No. 17 at 9.
to Federal Rule of Civil Procedure 55, default may be entered
against a party against whom a judgment for affirmative
relief is sought who fails to plead or otherwise defend
against the action. See Fed.R.Civ.P. 55(a). However,
“[a] defendant’s default does not automatically
entitle the plaintiff to a court-ordered judgment.”
PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172,
1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792
F.2d 915, 924-25 (9th Cir. 1986)); see Fed.R.Civ.P.
55(b) (governing the entry of default judgments). Instead,
the decision to grant or deny an application for default
judgment lies within the district court’s sound
discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092
(9th Cir. 1980). In making this determination, the court may
consider the following factors:
(1) the possibility of prejudice to the plaintiff; (2) the
merits of plaintiff’s substantive claim; (3) the
sufficiency of the complaint; (4) the sum of money at stake
in the action; (5) the possibility of a dispute concerning
material facts; (6) whether the 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). Default judgments are ordinarily disfavored.
Id. at 1472.
general rule, once default is entered, well-pleaded factual
allegations in the operative complaint are taken as true,
except for those allegations relating to damages.
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917-18 (9th Cir. 1987) (per curiam) (citing Geddes v.
United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)
(per curiam)); see also Fair Housing of Marin v.
Combs, 285 F.3d 899, 906 (9th Cir. 2002). Although
well-pleaded allegations in the complaint are admitted by a
defendant’s failure to respond, “necessary facts
not contained in the pleadings, and claims which are legally
insufficient, are not established by default.”
Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261,
1267 (9th Cir. 1992) (citing Danning v. Lavine, 572
F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v.
Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (“[A]
defendant is not held to admit facts that are not
well-pleaded or to admit conclusions of law”) (citation
and quotation marks omitted); Abney v. Alameida, 334
F.Supp.2d 1221, 1235 (S.D. Cal. 2004) (“[A] default
judgment may not be entered on a legally insufficient
claim.”). A party’s default conclusively
establishes that party’s liability, although it does
not establish the amount of damages. Geddes, 559
F.2d at 560; cf. Adriana Int’l Corp. v.
Thoeren, 913 F.2d 1406, 1414 (9th Cir. 1990) (stating in
the context of a default entered pursuant to Federal Rule of
Civil Procedure 37 that the default conclusively established
the liability of the defaulting party).
The Eitel Factors
Factor One: Possibility of Prejudice to Plaintiff
first Eitel factor considers whether the plaintiff
would suffer prejudice if default judgment is not entered,
and such potential prejudice to the plaintiff militates in
favor of granting a default judgment. See PepsiCo,
Inc., 238 F.Supp.2d at 1177. Here, plaintiff would
potentially face prejudice if the court did not enter a
default judgment. Absent entry of a default judgment,
plaintiff would be without another recourse for recovery.
Accordingly, the first Eitel factor favors the entry
of default judgment.
Factors Two and Three: The Merits of Plaintiff’s
Substantive Claims and the Sufficiency of the
undersigned considers the merits of plaintiff’s
substantive claims and the sufficiency of the complaint
together because of the relatedness of the two inquiries. The
undersigned must consider whether the allegations in the
complaint are sufficient to state a claim that supports the
relief sought. See Danning, 572 F.2d at 1388;
PepsiCo, Inc., 238 F.Supp.2d at 1175. Plaintiff
seeks entry of default judgment on her ...