United States District Court, S.D. California
ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT
[ECF NO. 7]
Cynthia Bashant United States District Judge
Ewing filed a Complaint against Senior Life Planning, LLC,
for violations of the Telephone Consumer Protection Act
(âTCPAâ) under both 47 U.S.C. Â§227(b) (using an automatic
telephone dialing system (âATDSâ) to deliver a message
without the consent of the owner) and Â§ 227(c) (contacting a
cellular telephone listed in the Do Not Call database).
(âComplaint,â ECF No. 1.) Senior Life Planning, LLC has
failed to respond.
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.)
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.
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).
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).
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
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.)
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.
Jurisdiction and Standing
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.
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.