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Ogio International, Inc. v. Ethos USA, Inc.

United States District Court, C.D. California

May 8, 2017

OGIO INTERNATIONAL, INC.
v.
ETHOS USA, INC.

          Present: The Honorable CHRISTINA A. SNYDER

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) - PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Filed April 7, 2017, Dkt. 14)

         I. INTRODUCTION

         On November 15, 2016, plaintiff Ogio International, Inc. (“Ogio”) filed this action against defendant Ethos USA, Inc., doing business as Ethos Management Group (“Ethos”). Dkt. 1 (“Complaint”). Ogio alleges that Ethos purchased golf bags and backpacks manufactured by Ogio for $230, 567 (“the Goods”), the Goods were delivered and accepted, Ogio issued invoices to Ethos for the purchases, and Ethos failed to pay the invoices. Ogio seeks recovery of the $230, 567 purchase price for the Goods, plus interest, attorneys' fees, and costs. Id.

         Ethos has not appeared in this action. On January 24, 2016, Ogio filed an ex parte application for service by publication. Dkt. 8. In its application, Ogio explained that it had exercised due diligence, but had been unable to personally serve Ethos with the Complaint. Id. The Court granted the application and directed Ogio to serve Ethos via publication in The Orange Coast Daily Pilot for four successive weeks. Dkt. 9. Upon compliance, Ogio was directed to provide proof of compliance by providing a return of service detailing its compliance. Id. On February 23, 2017, Ogio filed proof of service in compliance with the Court's order. Dkt. 10. Ethos failed to file an answer or otherwise respond to service.

         On March 31, 2017, the clerk entered default against Ethos. Dkt. 13. On April 7, 2017, Ogio filed the instant motion for default judgment against Ethos. Dkt. 14 (“Motion”). To date, Ethos has not appeared in this matter. Consistent with the local rules, plaintiff scheduled the instant motion for a hearing on May 8, 2017, at 10:00 a.m. and stated that hearing date and time on plaintiff's notice of motion. Dkt. 14. During the Court's motions calendar on May 8, 2017, neither plaintiff nor defendant appeared on the matter. Accordingly, the Court took the matter under submission.

         II. BACKGROUND

         Ogio is a Utah corporation that designs and manufactures bags, backpacks, and luggage. Complaint ¶ 2. Ethos is a California corporation in the business of wholesale and retail sporting equipment, supplies, and accessories. Id. ¶ 3.

         Between February 18 and February 19, 2014, Ogio shipped bags to Ethos for a total price of $230, 567. Id. ¶ 7. Ogio issued invoices to Ethos for the bags and payment for the Goods was due between March 20 and 21, 2014. Id. ¶ 8. Ethos received the Goods and its designee accepted delivery. Id. ¶ 10. Ethos also received the Invoices. Id. ¶ 14. Ogio alleges that Ethos has acknowledged in writing that it is liable for the price of the Goods. Id. ¶ 17. Ethos has never paid for the Goods. Id. ¶ 16.

         III. LEGAL STANDARD

         Granting or denying a motion for default judgment is a matter within the court's discretion. Elektra Entertainment Group, Inc. v. Bryant, 2004 WL 783123, *1 (C.D. Cal. Feb. 13, 2004); see also Sony Music Entertainment, Inc. v. Elias, 2004 WL 141959, *3 (C.D. Cal. Jan. 20, 2004). The Ninth Circuit has directed that courts consider the following factors in deciding whether to enter default judgment: (1) the possibility of prejudice to plaintiff; (2) the merits of plaintiff's substantive claims; (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 defendant's default was the product of excusable neglect; and (7) the strong policy favoring decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986); see also Bryant, 2004 WL 783123 at *1-2.

         IV. DISCUSSION

         As an initial matter, Ogio has complied with the procedural requirements of Federal Rule of Civil Procedure 55(b)(2) and Local Rule 55-1.[1] Accordingly, the Court proceeds to evaluate the Eitel factors.

         1. Possibility of ...


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