United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S MOTION TO SET ASIDE
DEFAULT JUDGMENT RE: DKT. NO. 51
H. KOH, UNITED STATES DISTRICT JUDGE
the Court is the motion of Defendant Energy Enterprises, USA,
Inc. (“Defendant”) to set aside default judgment
under Federal Rule of Civil Procedure 60(b). Having
considered the submissions of the parties, the relevant law,
and the record in this case, the Court DENIES Defendant's
motion to set aside default judgment.
January 31, 2017, Plaintiff Terrace Ellis
(“Plaintiff”), proceeding pro se, filed the
instant lawsuit against National Renewable Energy Center
(“NREC”). ECF No. 1. The case was originally
assigned to United States Magistrate Judge Howard Lloyd.
Id. Plaintiff alleged a single cause of action for
violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227. Id. In
brief, Plaintiff alleged that without Plaintiff's
consent, NREC placed 16 telemarketing calls to
Plaintiff's cell phone between November 25, 2014 and
January 8, 2015. Id. ¶ 15. Of those 16 calls,
14 occurred after Plaintiff asked NREC to cease calls to
Plaintiff's cell phone. Id. ¶ 21.
March 9, 2017, NREC's attorney Linda Lucero called
Plaintiff to inform Plaintiff that Lucero's client was in
the process of closing its doors and that Lucero was helping
NREC wrap things up. Ellis Decl. ¶ 13.
18, 2017, Plaintiff filed a first amended complaint against
Renewable Energy Center, LLC, “doing business as
National Renewable Energy Center.” ECF No. 11 at 1.
Plaintiff alleged that “[a]ccording to the Los Angeles
County Registrar-Recorder office, ‘National Renewable
Energy Center' is actually a fictitious name for a
California corporation known as Energy Enterprises USA,
Inc.” Id. at ¶ 18.
5, 2017, Plaintiff filed a second amended complaint against
Defendant, doing business as National Renewable Energy Center
and Canopy Energy California. ECF No. 17.
27, 2017, the Clerk entered default against Defendant. ECF
25, 2017, Plaintiff filed her first motion for default
judgment against Defendant. ECF No. 26. On November 27, 2017,
Judge Lloyd set aside the Clerk's entry of default
against Defendant and denied as moot Plaintiff's first
motion for default judgment because it was unclear if
Defendant, who had multiple business names, had been served
with the summons and complaint. ECF No. 27.
December 18, 2017, Plaintiff filed a third amended complaint
against Defendant Energy Enterprises USA, Inc, doing business
as National Renewable Energy Center and Canopy Energy
California. ECF No. 30.
April 13, 2018, the Clerk entered default against Defendant.
ECF No. 35. On June 4, 2018, the case was reassigned to
United States Magistrate Judge Virginia DeMarchi. ECF No. 36.
24, 2018, Plaintiff filed a second motion for default
judgment against Defendant. ECF No. 37. On October 2, 2018,
Plaintiff filed an amended declaration and exhibits in
support of her second motion for default judgment. ECF No.
November 20, 2018, Judge DeMarchi issued a report and
recommendation to grant Plaintiff's second motion for
default judgment, and the case was reassigned to the
undersigned. ECF No. 43. On December 6, 2018, Plaintiff
served Judge DeMarchi's report and recommendation on
Defendant. ECF No. 46. Defendant did not object to the report
December 21, 2018, the Court adopted Judge DeMarchi's
report and recommendation and granted Plaintiff's second
motion for default judgment in the amount of $8, 557. ECF No.
47. The Court ...