United States District Court, N.D. California, San Jose Division
ORDER CONSTRUING PLAINTIFF'S COUNSEL'S
DECLARATION AS A MOTION FOR RECONSIDERATION; GRANTING MOTION
FOR RECONSIDERATION; AND GRANTING PLAINTIFF'S MOTION FOR
DEFAULT JUDGMENT AGAINST DEFENDANT RICHARD HACKETT
LAB SON FREEMAN United States District Judge.
3, 2017, Plaintiff Fresh & Best Produce, Inc. filed a
document titled “Declaration of Susan E. Bishop in
Support of Second Request for Default Judgment as to Richard
Hackett.” Bishop Decl., ECF 32. The document is a
declaration of Plaintiff's counsel which acknowledges the
Court's denial of Plaintiff's prior motion for
default judgment against Defendant Richard Hackett (ECF 14)
on the basis that Plaintiff had failed to establish this
Court's personal jurisdiction over Hackett; asserts the
existence of a new fact establishing the existence of
personal jurisdiction over Hackett; and requests that the
Court grant Plaintiff's prior motion for default judgment
against Hackett. Id. The declaration relies on a
proof of service filed by Plaintiff on June 16, 2017, showing
personal service of process on Hackett within the state of
California on June 7, 2017. POS, ECF 31.
Court construes counsel's declaration as a motion for
reconsideration of the Court's prior denial of default
judgment against Hackett based on a new fact. For the reasons
discussed below, the Court GRANTS Plaintiff's motion for
reconsideration and GRANTS Plaintiff's (previously
denied) motion for default judgment against Hackett.
December 6, 2016, Plaintiff Fresh & Best Produce, Inc.
filed this complaint against Defendants Oaktown Ventures, LLC
and its managing member, Richard Hackett. Compl., ECF 1.
Plaintiff alleges that Oaktown, which then was doing business
as Jack's Oyster Bar and Fish House, ordered and accepted
produce from Plaintiff but failed to pay invoices due and
owing in excess of $27, 000. Id. ¶¶ 2,
7-10. Plaintiff asserts claims against Oaktown for multiple
violations of the Perishable Agricultural Commodities Act
(“PACA”), 7 U.S.C. §§ 499a-499t, and
for breach of contract. Id. ¶¶ 12-39.
Plaintiff also asserts a single claim against Hackett for
breach of fiduciary duty under PACA. Id.
¶¶ 40-49. Plaintiff alleges that as a result of
Hackett's breach of fiduciary duty, Plaintiff “has
incurred damages in the amount of $27, 053.06, plus interest
from the date each invoice became past de [sic], costs and
attorneys' fees.” Id. ¶ 47.
Oaktown nor Hackett responded to the complaint. Plaintiff
obtained a clerk's entry of default against Oaktown and
Hackett and then filed a motion for default judgment against
both defendants. Clerk's Entry of Default, ECF 12; Motion
for Default Judgment, ECF 14. At that time, the case was
assigned to Magistrate Judge Nathanael M. Cousins. Judge
Cousins issued a Report and Recommendation
(“R&R”) recommending that Plaintiff's
motion for default judgment be granted against Oaktown but
denied against Hackett, and requesting that the case be
reassigned to a district judge. R&R, ECF 22. The case
thereafter was reassigned to the undersigned judge. Order
Reassigning Case, ECF 23. This Court adopted the R&R,
granted default judgment against Oaktown, and denied default
judgment against Hackett. Order Adopting R&R, ECF 29. The
basis for the denial as to Hackett was Plaintiff's
failure to establish this Court's personal jurisdiction
over Hackett. Id. The denial as to Hackett was
without prejudice. Id.
has filed a declaration of counsel requesting that the Court
grant default judgment against Hackett based upon
Plaintiff's subsequent personal service of process on
Hackett within the state of California on June 7, 2017.
Bishop Decl. ¶ 7, ECF 32; POS, ECF 31. As noted above,
the Court construes the declaration of counsel as a motion
for reconsideration of the prior denial of default judgment
order to obtain reconsideration of an interlocutory order,
the moving party “must specifically show reasonable
diligence in bringing the motion” and also must show
one of the following: (1) “a material difference in
fact or law exists from that which was presented to the Court
before entry of the interlocutory order for which
reconsideration is sought”; (2) “[t]he emergence
of new material facts or a change of law occurring after the
time of such order”; or (3) “[a] manifest failure
by the Court to consider material facts or dispositive legal
arguments which were presented to the Court before such
interlocutory order.” Civ. L.R. 7-9(a), (b).
Plaintiff has satisfied the second prong by showing the
emergence of a new material fact occurring after the
Court's denial of Plaintiff's motion for default
judgment against Hackett, namely, personal service of process
on Hackett within the state of California. Bishop Decl.
¶ 7, ECF 32; POS, ECF 31. Personal service of process on
an individual who is voluntarily in the forum state is
sufficient to confer personal jurisdiction over that
individual even if his presence in the state is unrelated to
the litigation. Burnham v. Superior Court, 495 U.S.
604, 628 (1990). Plaintiff therefore has established personal
jurisdiction over Hackett. Because lack of personal
jurisdiction was the basis upon which the Court denied
Plaintiff's motion for default judgment against Hackett,
the Court will reconsider its denial of that motion.
determined that reconsideration is appropriate with respect
to its denial of Plaintiff's motion for default judgment
against Hackett, the Court now revisits that motion.