United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
matter was before the court on June 8, 2016, for hearing for
hearing on plaintiff's motion for default judgment
against defendant Pinnacle Asset Group, L.L.C. ECF No. 8.
Attorney Trinette Kent appeared on behalf of
plaintiff; no appearance was made by defendant. At
the hearing, the court observed that it was unclear whether
defendant had been properly served with a copy of the summons
and complaint and ordered plaintiff to submit a supplemental
declaration addressing this issue. That declaration has been
submitted, ECF No. 15, and addresses the concerns identified
by the court. Having considered plaintiff's pleadings,
the arguments made at the hearing, and the supplemental
declaration, the court finds that plaintiff's application
for default judgment should be granted.
filed this action against defendant, alleging violation of
the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692, et seq. ("FDCPA") and
the California Rosenthal Act, California Civil Code
§§ 1788 et. seq. ("Rosenthal
Act"). ECF No. 1. She filed a proof of service which
states that on October 23, 2015, a process server identified
as Richard Fink completed service on "Pinnacle Asset
Group, LLC c/o Raymond Stillwell Esquire" by personally
serving a copy of the summons and complaint on Chris Tocha,
an "Authorized Agent, " at 4476 Main Street #120,
Amherst, NY, 14226. ECF No. 5. Defendant has not filed an
answer to the complaint or otherwise appeared in this action.
Plaintiff requested the clerk to enter defendant's
default, ECF No. 6, which was entered on January 4, 2016, ECF
No. 7. Plaintiff now moves for entry of default judgment on
her FDCPA and Rosenthal Act claims. ECF No. 8.
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)). 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
considers 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
the 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
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986). "In applying this discretionary standard, default
judgments are more often granted than denied."
Philip Morris USA, Inc. v. Castworld Products, Inc.,
219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo,
Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D.
general rule, once default is entered, the factual
allegations of the complaint are taken as true, except for
those allegations relating to damages. TeleVideo Systems,
Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987)
(citations omitted). However, although well-pleaded
allegations in the complaint are admitted by 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). A
party's default conclusively establishes that party's
liability, although it does not establish the amount of
damages. Geddes v. United Fin. Group, 559 F.2d 557,
560 (9th Cir. 1977) (stating that although a default
established liability, it did not establish the extent of the
Appropriateness of the Entry of Default Judgment Under
the Eitel Factors
Factor 1: 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 unable to obtain remedies for
defendant's alleged misconduct.
Factors Two and Three: The Merits of Plaintiff's
Substantive Claims ...