United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
case was before the court on April 25, 2018, for hearing on
plaintiff's motion for entry of a default judgment
against defendant National Brokers of America, Inc. ECF No.
8. Attorney Nathaniel Clark appeared on behalf of plaintiff;
no appearance was made by defendant. For the reasons stated
below, plaintiff is entitled to default judgment the motion
should be granted.
brings this action against defendant National Brokers of
America, Inc. (“National Brokers” or
“defendant”), alleging violations of the
Telephone Consumer Protection Act (“TCPA”). ECF
No. 1. The docket reflects that defendant was served with a
copy of the summons and complaint on October 2, 2017. ECF No.
5. Despite being properly served, defendant has not responded
to the complaint. Plaintiff requested entry of
defendant's default, which the clerk entered on November
29, 2017. ECF Nos. 6, 7. Plaintiff now moves for entry of a
default judgment in the amount of $93, 000, which represents
statutory damages based upon 62 violations of the TCPA.
to the complaint, from July to September 2017, defendant used
an automatic telephone dialing system to call plaintiff's
cellular phone on 62 occasions. ECF No. 1 ¶¶ 35-37.
Defendant failed to identify itself during each of the calls.
Id. ¶ 34. Moreover, at the time the calls were
placed plaintiff was registered on the national do-not-call
registry. Id. ¶¶ 32, 38. Plaintiff also
orally instructed defendant to stop contacting her during
phone calls placed on August 4, 7, and 8, 2017. Id.
¶¶ 17-19. The complaint alleges three causes of
action, styled as (1) “Use of Automatic Telephone
Dialing System, ” (2) “Failure to Identify
Calling Party, ” and (3) “Do-Not-Call List
Violations.” Id. at 9-11.
to Federal Rule of Civil Procedure 55, default may be entered
against a party against whom a judgment for affirmative
relief is sought who fails to plead or otherwise defend
against the action. See Fed. R. Civ. P. 55(a).
However, “[a] defendant's default does not
automatically entitle the plaintiff to a court-ordered
judgment.” PepsiCo, Inc. v. Cal. Sec. Cans,
238 F.Supp.2d 1172, 1174 (C.D. Cal. 2002) (citing Draper
v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)).
Instead, the decision to grant or deny an application for
default judgment lies within the district court's sound
discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092
(9th Cir. 1980). In making this determination, the court
considers the following factors:
(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
the 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
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986). “In applying this discretionary standard,
default judgments are more often granted than denied.”
Philip Morris USA, Inc. v. Castworld Products, Inc.,
219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo,
Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D.
general rule, once default is entered, the factual
allegations of the complaint are taken as true, except for
those allegations relating to damages. TeleVideo Systems,
Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987)
(citations omitted). However, although well-pleaded
allegations in the complaint are admitted by 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). A
party's default conclusively establishes that party's
liability, although it does not establish the amount of
damages. Geddes v. United Fin. Group, 559 F.2d 557,
560 (9th Cir. 1977) (stating that although a default
established liability, it did not establish the extent of the
Appropriateness of the Entry of Default Judgment Under
the Eitel Factors
complaint sufficiently alleges multiple violations of the
TCPA. Under the TCPA, it is unlawful for “any person .
. . to make any call (other than a call made . . . with the
prior express consent of the called party) using any
automatic telephone dialing system . . . to any telephone
number assigned to a . . . cellular telephone service . . .
.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA also
prohibits a person or entity from placing multiple calls in a
12-month period to a person registered on the national
do-not-call registry. 47 U.S.C. § 227(c)(5) (“A
person who has received more than one telephone call within
any 12-month period by or on behalf of the same entity in
violation of the regulations prescribed under this subsection
may [pursue an action].”); 47 C.F.R. § 64.1200(c)
(“No person or entity shall initiate any telephone
solicitation to . . . [a] residential telephone subscriber
who has registered his or her telephone number on the
national do-not-call registry . . . .”). The FCPA also
requires that all calls using an artificial or prerecorded
voice “state clearly the identity of the . . . entity
that is responsible for initiating the call.” 47 C.F.R.
complaint alleges that defendant called plaintiff's
cellular phone 62 times between July and September 2017. ECF
No. 1 ¶ 35. Each call was made with an automatic
telephone dialing system using the same
pre-recorded/artificial voice message. Id.
¶¶ 36-37. Further, the calls were made without
plaintiff's consent and, at the time each call was made,
plaintiff was registered on the national do-not-call-
registry. Id. ¶¶ 30, 32. The complaint
also alleges that defendant failed to identify itself when
calling plaintiff. Id. ¶ 34. These allegations
are sufficient to show that each of the 62 phone calls
defendant made violated the TCPA. Accordingly, the merits of
plaintiff's substantive claims and the sufficiency of the
complaint weigh in favor of default judgment.
many of the remaining Eitel factors weigh in favor
of granting plaintiff's application for default judgment.
Defendant was served a copy of the summons and complaint, but
has failed to appear and defend against plaintiff's
claims. ECF No. 5. Thus, it appears that defendant's
failure to respond is not due to excusable neglect. Plaintiff
only seeks damages in the amount authorized by statute and,
when accepting plaintiff's allegations as true, there is
little possibility of a dispute concerning material facts.
See, e.g., Elektra Entm't Group Inc. v.
Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005)
(“Because all allegations in a well-pleaded complaint
are taken as true after the court clerk enters default
judgment, there is no likelihood that any genuine issue of
material fact exists.”); accord Philip Morris USA,
Inc., 219 F.R.D. at 500; Cal. Sec. Cans, 238
F.Supp.2d at 1177. Furthermore, plaintiff would potentially
face prejudice if the court did not enter default judgment as
defendant has failed to respond to plaintiff's claims,
preventing the ability to litigate the claims on their
merits. Although there is a strong policy in deciding cases
on the merits, district courts have concluded with regularity
that this policy, standing alone, is not dispositive,
especially where a defendant fails to appear or defend itself
in an action. Cal. Sec. Cans, 238 ...