United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT THE COURT GRANT
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (Doc.
K. OBERTO UNITED STATES MAGISTRATE JUDGE
before the Court is Plaintiff's Motion for Default
Judgment. (Doc. 38.) To date, Defendant has not filed an
opposition to this motion. The undersigned has reviewed
Plaintiff's Motion for Default Judgment, as well as its
supporting documentation, and determined pursuant to Local
Rule 230(g) that this matter is suitable for decision without
reasons set forth herein, the undersigned RECOMMENDS that the
presiding district court judge GRANT Plaintiff's Motion
for Default Judgment. (Id.)
action involves allegations that Defendant, a debt collector,
violated the federal Fair Debt Collection Practices Act (the
“FDCPA”) and California's Rosenthal Fair Debt
Collection Practices Act (the “Rosenthal Act”)
when it left a voicemail for Plaintiff in approximately
is a natural person who resides in the City of Clovis, State
of California.” (Doc. 1 ¶ 14.) According to the
Complaint, Plaintiff “alleged[ly] . . . incurred
certain financial obligations related to student loans”
sometime “before February . . . 2015” (the
“Debt”). (Id. ¶ 21.) This Debt was
“primarily for personal, family or household
purposes.” (Id. ¶ 22.)
“is a law firm based in Nevada.” (Doc. 5 at 3.)
The Complaint asserts that Defendant “uses an
instrumentality of interstate commerce or the mails in a
business the principal purpose of which is the collection of
debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be
owed or due another.” (Doc. 1 ¶ 17.) Plaintiff
alleges that the Debt “was assigned, placed, or
otherwise transferred . . . to Defendant for
collection” at some time “before February . . .
2016.” (Id. ¶ 25.)
Complaint, Plaintiff asserts that, “[o]n or about
February . . . 2016, Defendant contacted Plaintiff by
telephone in an attempt to collect Plaintiff's alleged
[D]ebt and left Plaintiff a voicemail” (the
“February 2016 Communication”). (Id.
¶ 26.) The Complaint also includes an allegation that
“Defendant failed to disclose in [the February 2016
Communication] that the communication was from a debt
collector.” (Id. ¶ 27.) The Complaint
further alleges that “[a]ny violations by Defendant
were knowing, willful, and intentional.” (Id.
¶ 5.) The Complaint does not provide any additional
allegations regarding the February 2016 Communication, such
as the content of the voicemail. (See Doc. 1.)
filed the Complaint in this Court on March 24, 2016.
(Id.) The Complaint includes two claims alleging
violations of the FDCPA (Count I) and the Rosenthal Act
(Count II). (See Id. ¶¶ 29-34.) The
Complaint also includes the following prayers for relief: (1)
“statutory damages of $1, 000.00 pursuant to 15 U.S.C.
§ 1692k(a)(2)(A), ” (2) “costs of litigation
and reasonable attorney's fees . . . pursuant to 15
U.S.C. § 1692k(a)(3), ” (3) “statutory
damages of $1, 000.00 pursuant to [California Civil] Code
§ 1788.30(b), ” and (4) “costs of litigation
and reasonable attorney's fees . . . pursuant to
[California Civil] Code § 1788.30(c).”
(Id. at 6.) On May 6, 2016, Plaintiff effectuated
service of the Complaint on Defendant. (See Doc. 4.)
31, 2016, Defendant filed a Motion to Dismiss Complaint, in
which it argued that dismissal was appropriate under Federal
Rule of Civil Procedure 12(b)(6). (Doc. 5.) The presiding
district court judge denied this motion in an opinion entered
on August 5, 2016. (Doc. 18.) Defendant then filed an Answer
to the Complaint on August 19, 2016. (Doc. 19.)
October 14, 2016, Plaintiff filed a Motion Regarding
Discovery, in which she requested that the Court compel
Defendant's responses to certain discovery requests.
(Doc. 25.) In an order entered on November 2, 2016, the
undersigned granted this motion to compel, ordered Defendant
“to serve written responses to” certain discovery
requests “by November 9, 2016, ” and ordered
Defendant “to pay Plaintiff's attorney . . .
reasonable attorney's fees in the amount of” $1,
475.00 “within thirty . . . days.” (Doc. 27 at
November 21, 2016, Plaintiff notified the Court that
Defendant failed to comply with the undersigned's order
to serve written responses to certain discovery requests by
November 9, 2016. (Doc. 28.) On December 12, 2016, Plaintiff
notified the Court that Defendant also failed to comply with
the undersigned's order to pay reasonable attorneys'
fees to Plaintiff's counsel. (Doc. 29.)
on December 28, 2016, Plaintiff filed a Motion to Strike
Defendant's Answer Pursuant to Fed. R. Pro.
37(b)(2)(A)(iii) (the “Motion to Strike”), in
which Plaintiff requested that the Court strike
Defendant's Answer due to Defendant's failure to
comply with the undersigned's November 2, 2016 order.
(Doc. 30.) In findings and recommendations entered on January
17, 2017, the undersigned recommended that the presiding
district court judge grant Plaintiff's Motion to Strike.
(Doc. 31.) In an order entered on March 30, 2017, the
presiding district court judge adopted the F&R, ordered
that Defendant's Answer “is stricken, ” and
directed the Clerk “to enter default against
[D]efendant.” (Doc. 35 at 2-3.) The Clerk entered
default against Defendant on the same date. (Doc. 36.)
April 25, 2017, Plaintiff filed the Motion for Default
Judgment. (Doc. 38.) On the same date, Plaintiff effectuated
service of this motion on Defendant. (See Doc. 38,
Ex. 3.) Nonetheless, to date, Defendant has not filed any
responsive brief to Plaintiff's Motion for Default
Judgment. As such, Plaintiff's Motion for Default
Judgment is ready for disposition.
Rule of Civil Procedure 55(b) permits a court-ordered default
judgment following the entry of default by the clerk of the
court under Rule 55(a). See Fed. R. Civ. P.
55(b)(2). “[D]efault does not entitle the
non-defaulting party to a default judgment as a matter of
right . . . .” Dreith v. Nu Image, Inc., 648
F.3d 779, 785 (9th Cir. 2011). Rather, “[t]he district
court's decision whether to enter a default judgment is a
discretionary one.” Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980) (citations omitted).
Eitel v. McCool, the Ninth Circuit identified seven
“[f]actors which may be considered by courts in
exercising discretion as to the entry of a default judgment,
” including (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.” 782 F.2d 1470, 1471-72 (9th Cir. 1986). The
“general rule” is “that default judgments
are ordinarily disfavored.” Id. at 1472.
Nonetheless, in applying the Eitel
“discretionary standard, default judgments are more
often granted than denied.” Philip Morris USA, Inc.
v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D.
Cal. 2003) (quoting PepsiCo v. Triunfo-Mex, Inc.,
189 F.R.D. 431, 432 (C.D. Cal. 1999)).
general rule of law is that upon default the factual
allegations of the complaint, except those relating to the
amount of damages, will be taken as true.”
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917-18 (9th Cir. 1987) (quoting Geddes v. United Fin.
Grp., 559 F.2d 557, 560 (9th Cir. 1977)); see also
Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267
(9th Cir. 1992) (“In reviewing a default judgment,
[the] court must take the well-pleaded factual allegations of
[the complaint] as true.” (citing Benny v.
Pipes, 799 F.2d 489, 495 (9th Cir. 1986))).
“However, a defendant is not held to admit facts that
are not well-pleaded or to admit conclusions of law.”
DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th
Cir. 2007) (citation omitted). Further, “necessary
facts not contained in the pleadings, and claims which are
legally insufficient, are not established by default.”
Id. (citing Danning v. Lavine, 572 F.2d
1386, 1388 (9th Cir. 1978)).
ANALYSIS OF THE EITEL FACTORS
undersigned shall address each of the Eitel factors,
in turn. For the reasons provided below, the undersigned
finds that these factors weigh in favor of ...