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Ellis v. Energy Enterprises USA, Inc.

United States District Court, N.D. California, San Jose Division

August 30, 2019

TERRACE ELLIS, Plaintiff,
v.
ENERGY ENTERPRISES USA, INC., Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SET ASIDE DEFAULT JUDGMENT RE: DKT. NO. 51

          LUCY H. KOH, UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         On 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.

         On 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.

         On May 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.

         On June 5, 2017, Plaintiff filed a second amended complaint against Defendant, doing business as National Renewable Energy Center and Canopy Energy California. ECF No. 17.

         On July 27, 2017, the Clerk entered default against Defendant. ECF No. 25.

         On July 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.

         On 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.

         On 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.

         On July 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. 41.

         On 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 and recommendation.

         On 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 ...


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