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Heidarpour v. Empire Capital Funding Group Inc.

United States District Court, N.D. California

March 30, 2018

FRED HEIDARPOUR, et al., Plaintiffs,
v.
EMPIRE CAPITAL FUNDING GROUP INC., Defendant.

          ORDER DENYING PLAINTIFFS' APPLICATION FOR DEFAULT JUDGMENT BY THE CLERK RE: DKT. NO. 10

          KANDIS A. WESTMORE, UNITED STATES MAGISTRATE JUDGE.

         On January 11, 2018, Plaintiffs Fred Heidarpour and Abante Rooter and Plumbing Inc. filed the instant case, alleging violations of the Telephone Consumer Protection Act ("TCPA"). (Compl. ¶ 1, Dkt. No. 1.) On March 7, 2018, Plaintiffs moved for entry of default. (Dkt. No. 8.) On March 16, 2018, the clerk entered default. (Dkt. No. 9.)

         On March 24, 2018, Plaintiffs filed an application for default judgment by the clerk. (Dkt. No. 10.) Federal Rule of Civil Procedure 55(b)(1) permits the clerk to enter default judgment where "the plaintiff's claim is for a sum certain or a sum that can be made certain by computation." The Court finds that the instant case does not satisfy this requirement, and therefore DENIES Plaintiffs' application for default judgment by the clerk.[1]

         Plaintiffs are directed to file a motion for default judgment by the court. The motion must include a proposed order that is structured as outlined in Attachment A and include all relevant legal authority and analysis necessary to establish the case. Plaintiffs shall also e-mail the proposed findings in Microsoft Word (.docx) format to kawpo@cand.uscourts.gov. No chambers copies of the proposed order need to be submitted. Plaintiffs are ordered to serve the motion for default judgment and this notice upon all other parties in this action.

         IT IS SO ORDERED.

         ATTACHMENT A

         INTRODUCTION

         (Relief sought and disposition.)

         I. BACKGROUND

         (The pertinent factual and procedural background, including citations to the Complaint and record. Plaintiff(s) should be mindful that only facts in the Complaint are taken as true for purposes of default judgment; therefore, Plaintiff(s) should cite to the Complaint whenever possible.)

         II. LEGAL STANDARD

         (Include the following standard)

         Federal Rule of Civil Procedure 55(b)(2) permits a court to enter a final judgment in a case following a defendant's default. Shanghai Automation Instrument Co. v. Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001). Whether to enter a judgment lies within the court's discretion. Id. at 999 (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)).

         Before assessing the merits of a default judgment, a court must confirm that it has subject matter jurisdiction over the case and personal jurisdiction over the parties, as well as ensure the adequacy of service on the defendant. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). If the court finds these elements satisfied, it turns to the following ...


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