United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS GRANTING PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
February 8, 2017, Plaintiff Ascentium Capital, LLC
(“Plaintiff”) filed a motion for default judgment
against Defendants Aero Transport, Inc. and Ranjit Dhaliwal
(“Defendants”). No opposition to Plaintiff's
motion was filed. The motion was referred to this Court
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
The Court deemed the matter suitable for decision without
oral argument pursuant to Local Rule 230(g), and vacated the
hearing scheduled for March 17, 2017. (Doc. 13). Having
considered the moving papers and the Court's file, the
Court RECOMMENDS that Plaintiff's motion for default
judgment be GRANTED.
to the Complaint, Plaintiff alleges that on April 23, 2015,
Defendants agreed to purchase a 2016 Kenworth Model T680
vehicle together with an extended warranty
(“Vehicle”). Plaintiff's Complaint at ¶
9, Doc. 1. By executing the Finance Agreement and a Guaranty,
Plaintiff loaned money to Defendants to purchase the Vehicle
and Defendants agreed to repay the loan by making 60 monthly
payments of $3, 056.41. See Declaration of Jerry
Noon (“Noon Decl.”), Exh. 1, (Doc.11 at 9-11).
Plaintiff's performance under the contract, Defendants
failed to make the payments as promised after March 2016.
Noon Decl. ¶ 12. Though Plaintiff demanded repayment,
Defendants have failed to comply. Id. Thus,
Defendants owe Plaintiff the entire unpaid balance of $145,
015.82 plus interest and late payment charges. Id.
In addition to repayment of the loans, Plaintiff seeks to
recover possession of the Vehicle based upon a lien it placed
on the Vehicle in connection with the Finance Agreement. Noon
Decl. Ex. 1 at pg. 9-10. Despite demanding that Defendants
turn over the Vehicle, they have failed to do so. Noon Decl.
¶ 20. Under the Finance Agreement, Plaintiff is entitled
to liquidate the Vehicle in a commercially reasonable manner
and credit the judgment with all sums received from the sale.
order to recover the payments and possession of the Vehicle,
Plaintiff filed the underlying action on October 16, 2016.
(Doc. 11). On November 19, 2016, Plaintiff served a copy of
the summons and complaint on Defendants by personally serving
the documents on Defendant Ranjit Dhaliwal, as an individual,
and as the registered agent for Defendant Aero Transport,
Inc., at 4482 West Michigan Avenue, Fresno, California.
(Proof of Service, Docs. 4, 5). Defendants did not respond to
the complaint, and on January 7, 2017, Plaintiff filed a
request for entry of default. (Doc. 6). That same day, the
Clerk of the Court entered default against Defendants. (Docs.
7, 8). Plaintiff's instant motion for default judgment
against Defendants followed. (Doc. 11).
to Federal Rule of Civil Procedure 55(b)(2), a plaintiff can
apply to the court for a default judgment against a defendant
that has failed to plead or otherwise defend against the
action. Fed.R.Civ.P. 55(b)(2). “Upon default, the
well-pleaded allegations of a complaint relating to liability
are taken as true.” Dundee Cement Co. v. Howard
Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323
(7th Cir. 1983); TeleVideo Systems, Inc. v.
Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Thus,
“[a]t the time of entry of default, the facts alleged
by the plaintiff in the complaint are deemed admitted.”
10 J. Moore, Moore's Federal Practice § 55.11 (3d
which may be considered by courts in exercising discretion as
to the entry of a default judgment include: (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. PepsiCo, Inc. v. Cal.
Security Cans, 238 F.Supp.2d 1172, 1176 (C.D. Cal.
2002); Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th
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)).
the factors articulated by the Ninth Circuit in
Eitel, the Court finds the factors weigh in favor of
granting Plaintiff's motion for default judgment.
Possibility of Prejudice to Plaintiff
first factor considers whether the plaintiff would suffer
prejudice if default judgment is not entered. See
Pepsico, Inc., 238 F.Supp.2d at 1177. Generally, where
default has been entered against a defendant, a plaintiff has
no other means by which to recover damages. Id.;
Moroccanoil, Inc. v. Allstate Beauty Prods., 847
F.Supp.2d 1197, 1200-01 (C.D. Cal. 2012). Therefore, the
Court finds Plaintiff would be prejudiced if default judgment
is not granted.
Merits of the Plaintiff's claims and the Sufficiency of
second and third Eitel factors, taken together,
“require that [the] plaintiff[s] state a claim on which
[they] may recover.” Pepsico, Inc., 238
F.Supp.2d at 1175. Notably a “defendant is not held to
admit facts that are not well-pleaded or to admit conclusions
of law.” DIRECTV, Inc. v. Huynh, 503 F.3d 847,
854 (9th Cir.2007).
Breach of contract
demonstrate a breach of contract claim, Plaintiff must prove
the existence of a contract, breach, damages, and that
Plaintiff performed under the contract. Oasis West
Realty, LLC v. Goldman, 51 Cal.4th 811, 821 (2011). Via
the Complaint, Plaintiff has pleaded the existence of a
contract with the Defendants by attaching the executed
Finance Agreement and Commencement Agreement. (Doc. 1 at 9-
16). Plaintiff additionally alleges that while Plaintiff
performed under the contract, Aero Transport, Inc. failed to
make payments on the contract. Id. Finally,
Plaintiff has alleged it suffered losses of $145, 015.82 plus
interest and late charges in the amount of $1, 833.84 under
the contract. Thus, Plaintiff has established the elements
for breach of contract.