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Ewing v. Senior Life Planning, LLC

United States District Court, S.D. California

September 19, 2019

ANTON EWING, Plaintiff,
v.
SENIOR LIFE PLANNING, LLC, Defendant.

          ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT [ECF NO. 7]

          Hon. Cynthia Bashant United States District Judge

         Anton Ewing filed a Complaint against Senior Life Planning, LLC, for violations of the Telephone Consumer Protection Act (“TCPA”) under both 47 U.S.C. §227(b) (using an automatic telephone dialing system (“ATDS”) to deliver a message without the consent of the owner) and § 227(c) (contacting a cellular telephone listed in the Do Not Call database). (“Complaint,” ECF No. 1.) Senior Life Planning, LLC has failed to respond.

         Mr. Ewing now seeks default judgment in the amount of $64,000 for eight telephone calls placed in violation of the TCPA. (ECF No. 7.) He seeks $1,500 per telephone call per violation for a total of $24,000, and he also seeks damages under the California Penal Code for unauthorized recording of a cellular telephone call. (Id.)

         The Court, in its discretion, declines to award treble damages per telephone call, but will award $500 per telephone call for each violation for a total of $8,000. Furthermore, the Court finds Mr. Ewing has failed to allege a cause of action or facts supporting a cause of action for violation of California Penal Code §637.2, and, therefore, declines to award damages under this section.

         I. LEGAL STANDARD

         Rule 55(b)(2) of the Federal Rules of Civil Procedure governs applications to the court for default judgment. See Fed. R. Civ. P. 55(b)(2). Default judgment is available as long as the plaintiff establishes: (1) defendant has been served with the summons and complaint and default was entered for its failure to appear; (2) defendant is neither a minor nor an incompetent person; (3) defendant is not in the military service or not otherwise subject to the Soldiers and Sailors Relief Act of 1940; and (4) if defendant has appeared in the action, that defendant was provided with notice of the application for default judgment at least seven days prior to the hearing. See Fed. R. Civ. P. 55; Twentieth Century Fox Film Corp., v. Streeter, 438 F.Supp.2d 1065, 1070 (D. Ariz. 2006). The Court must also satisfy that it has personal jurisdiction over the defendant and that plaintiff has standing to bring the lawsuit. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (holding when considering whether to enter default judgment, court may dismiss an action sua sponte for lack of personal jurisdiction because a judgment entered without subject matter or personal jurisdiction over the parties is void).

         Entry of default judgment is within the trial court’s 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 merits. Eitel v. McCool, 782 F.2d 1470 1471–72 (9th Cir. 1986).

         Upon entry of default, the factual allegations in plaintiff’s complaint, except those relating to damages, are deemed admitted. TeleVideo Sys., Inc., v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). Where the amount of damages claimed is a liquidated sum or capable of mathematical calculation, the court may enter a default judgment without a hearing. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981). In determining damages, a court may rely on declarations submitted by the plaintiff in lieu of a full evidentiary hearing. See Philip Morris USA v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (citing Fed.R.Civ.P. 55(b)(2)).

         II. DISCUSSION

         A. Procedural Requirements

         Plaintiff has satisfied the procedural requirements for default judgment pursuant to Rules 55 and 54(c) of the Federal Rules of Civil Procedure. Pursuant to Rule 55(a), the Clerk of Court properly entered default against Defendant Senior Life Planning, LLC. (ECF No. 5.) The Registered Agent of Senior Life Planning, LLC was personally served with the summons and complaint, and Senior Life Planning LLC failed to plead or otherwise defend this action. (ECF No. 3.) Defendant is not a minor, an incompetent person, nor is it subject to the Soldiers and Sailors Civil Relief Act of 1940. Furthermore, Defendant was also served with a copy of the present Motion at least seven days prior to the hearing. (ECF No. 7.)

         Thus, the Court, in its discretion, may order default judgment against Defendant. But, before entering default judgment, the Court reviews personal and subject matter jurisdiction, as well as the factors enumerated in Eitel.

         B. Jurisdiction and Standing

         1. Personal Jurisdiction

         Plaintiff alleges specific personal jurisdiction over Senior Life Planning, LLC. (Complaint ¶ 30.) The Ninth Circuit employs a three-part test to determine whether the defendant’s contacts with the forum state are sufficient to subject it to specific jurisdiction. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Under the three-part inquiry, specific jurisdiction exists only if: (1) the out-of-state defendant purposefully availed itself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of the forum’s laws; (2) the cause of action arose out of the defendant’s forum-related activities and (3) the exercise of jurisdiction is reasonable. Myers v. Bennett Law Offices, 238 F.3d 1068, 1072 (9th Cir. 2001). The plaintiff bears the burden of satisfying the first two prongs of this specific jurisdiction test. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). “If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the exercise of jurisdiction would not be reasonable.” Id.

         Plaintiff has successfully shown that Senior Life Planning LLC purposely availed itself of the privilege of conducting activities in the forum when it placed telephone calls to Plaintiff whose telephone and residence were in the Southern District of California. Furthermore, since the cause of actions under the TCPA arose out of these forum-related activities, Plaintiff has sufficiently satisfied the first two prongs of the specific jurisdiction test. Because Senior Life Planning LLC has failed to respond to the Complaint, it has not met its burden to show that exercise of jurisdiction in this forum would not be reasonable.

         2. ...


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