United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S
MOTION FOR ENTRY OF DEFAULT JUDGMENT BE GRANTED (DOC. 12)
OBJECTIONS DUE: 21 DAYS
K. OBERTO, UNITED STATES MAGISTRATE JUDGE.
the Court is an unopposed motion for default judgment, filed
on October 10, 2017, by Plaintiff Jennifer Kitchens
(“Plaintiff”) against Defendant Daniel Lent
D.B.A. Capital Reclamations (“Defendant”). (Doc.
12.) The Court has reviewed Plaintiff's submissions and
determined, pursuant to Local Rule 230(g), that the matter
was suitable for decision without oral argument. The Court
accordingly vacated the motion hearing. (Doc. 14.)
reasons set forth below, the Court RECOMMENDS that
Plaintiff's motion for default judgment be GRANTED.
action presents claims that Defendant, allegedly a debt
collector, violated the federal Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692
et seq., and California's Rosenthal Fair Debt
Collection Practices Act (“Rosenthal Act”),
California Civil Code § 1788 et seq. (Doc. 1
(“Complaint”), ¶ 10.) According to the
Complaint, which Plaintiff filed on May 15, 2017, Plaintiff
incurred a debt, the debt was transferred to Defendant for
collection, and thereafter Defendant initiated a state-court
collection action against Plaintiff. (Compl. ¶¶ 20,
23-25.) The Complaint alleges, among other things, that
Defendant improperly served the complaint at an address not
belonging to Plaintiff, improperly venued the action in a
county where Plaintiff did not reside, and nevertheless
obtained a default judgment against her and then attempted to
garnish her wages. (Compl. ¶¶ 30-32, 36, 38,
49-51.) The Complaint seeks an award of statutory damages,
actual damages, costs of suit, and attorney's fees.
Defendant was served with the Complaint on May 22, 2017, to
date, Defendant has failed to respond. (Doc. 6.) On August
16, 2017, Plaintiff requested that the Clerk of the Court
enter default against Defendant, which the Clerk entered that
same day. (Docs. 8, 9.) Plaintiff now moves the Court for a
default judgment against Defendant. (Doc. 12.)
Federal Rules of Civil Procedure permit a court-ordered
default judgment following the entry of default by the Clerk
of the Court. See Fed. R. Civ. P. 55(b)(2).
“The district court's decision whether to enter a
default judgment is a discretionary one.” Aldabe v.
Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980). That is,
a defendant's default by itself does not entitle a
plaintiff to such a judgment. See id. (citations
determining whether to enter default judgment, the Court
should consider the following so-called Eitel
factors: (1) the possibility of prejudice to the plaintiff,
(2) the merits of the 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. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th
reasons set forth below, the Court finds that the
Eitel factors weigh in favor of entering default
judgment against Defendant.
Analysis of the Eitel Factors
Factor One: Plaintiff Will Be Prejudiced if Default Judgment
is Not Granted.
first Eitel factor favors entry of default judgment
where “the plaintiff would suffer prejudice if default
judgment is not entered.” Lyon v. Bergstrom Law,
Ltd., No. 1:16-cv-00401-DAD-SKO, 2017 WL 2350447, at *3
(E.D. Cal. May 31, 2017) (quoting Joe Hand Promotions,
Inc. v. Dhillon, No. 2:15-cv-1108-MCE-KJN, 2015 WL
7572076, at *2 (E.D. Cal. Nov. 25, 2015). Five months into
this action, Defendant has failed to respond to the
Complaint. The litigation has thereby stalled, potentially
prejudicing Plaintiff by leaving her with no recourse to
recover on her claims. That, by itself, is sufficient for a
finding that this factor weighs in favor of entering default
judgment. See, e.g., Philip Morris,
USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499
(C.D. Cal. 2003).
Factors Two and Three: Plaintiff's Claims that Defendant
Violated the FDCPA and Rosenthal Act Are Meritorious and the
Complaint is Sufficient.
the second and third Eitel factors, the Court
considers the general sufficiency of the complaint as well as
the merits of its substantive claims. HICA Educ. Loan
Corp. v. Warne, No. 11-cv-04287-LHK, 2012 WL 1156402, at
*2 (N.D. Cal. Apr. 6, 2012). See generally U.S. ex rel.
Hajoca Corp. v. Aeroplate Corp., No.
1:12-cv-1287-AWI-BAM, 2013 WL 3729692, at *3 (E.D. Cal. July
12, 2013) (addressing the second and third Eitel
factors “together because of the relatedness of the two
inquiries”). These factors “together . . .
require that a plaintiff state a claim on which the plaintiff
may recover.” PepsiCo, Inc. v. Cal. Sec. Cans,
238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002); see also
Danning v.Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978);
Discovery Commc'ns, Inc. v. Animal Planet, Inc.,
172 F.Supp.2d 1282, 1288 (C.D. Cal. 2001).
Complaint alleges two causes of action: one under the FDCPA
and one under the Rosenthal Act, with multiple violations of
the law alleged within each cause of action. (Compl.
¶¶ 62-67.) To state a claim under the FDCPA, a
plaintiff must show (1) the plaintiff is a “consumer,
” (2) the defendant is a “debt collector, ”
and (3) the defendant committed some act or omission in
violation of the FDCPA. See 15 U.S.C. §
1692a(3)-(6); see also Allmendinger v. Oxford Law,
LLC, No. 2:14-cv-1990-KJM-EFB, 2016 WL 146230, at *2
(E.D. Cal. Jan. 13, 2016). FDCPA violations also constitute
violations of the Rosenthal Act. See Cal. Civ. Code
§ 1788.17 (incorporating the majority of the FDCPA);
see also Esget v. TCM Fin. Servs. LLC, No.
1:11-cv-00062-AWI-BAM2014, WL 258837, at *5 (E.D. Cal. Jan
23, 2014). These laws aim to protect consumers from unfair
and deceptive debt collection practices. See 15
U.S.C. § 1692; see also Lyon, 2017 WL 2350447,
at *4 (quoting Gonzales v. Arrow Fin. Servs., Inc.,
660 F.3d 1055, 1060 (9th Cir. 2011)).
stage-on a motion for entry of default judgment following
entry of default by the Clerk of the Court-the Court must
accept as true the well-pleaded facts in the complaint.
Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917-18 (9th Cir. 1992). Necessary facts which are not
contained in the complaint, or are legally insufficient,
however, will not be established by the Clerk's entry of
default. Cripps v. Life Ins. Co. of N. Am., 980 F.2d
1261, 1267 (9th Cir. 1992).
the first and second elements required under the FDCPA, the
Complaint sufficiently pleads Plaintiff's status as a
consumer, Defendant's status as a debt collector, and the
status of the debt at issue. (Compl. ¶¶ 13-17);
see also 15 U.S.C. §§ 1692a(3) (defining
the term “consumer”), 1692a(6) (defining the term
“debt collector”), 1692a(5) (defining the term
“debt”). The Court will now turn to the third