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Elhalwani v. Bourji

United States District Court, C.D. California

November 1, 2019

Wael Salim Elhalwani
Ziad Bourji, et al.

          Present: The Honorable James V. Selna, U.S. District Court Judge.


         Proceedings: [IN CHAMBERS] Minute Order Regarding Motion for Entry of Default Judgment and Issuance of Permanent Injunction

         Plaintiff Wael Elhalwani (“Elhalwani”) filed a motion for entry of default judgment and issuance of permanent injunction against Defendant Ziad Bourji (“Bourji”) and filed the declarations of Daniel H. Ngai (“Ngai Decl.”) and Mohamad B. Hariri (“Hariri Decl.”) in support thereof. Mot., ECF No. 34; Ngai Decl., ECF No. 34-1; Hariri Decl., ECF No. 34-2.

         For the following reasons, the Court DENIES the motion for entry of default.

         I. Background

         On March 13, 2019, Plaintiff filed his Complaint. Complaint, ECF No. 1. On March 19, 2019 Plaintiff filed a First Amended Complaint (“FAC”), which is the operative complaint. FAC, ECF No. 18.

         The FAC alleges the following. On or about July 9, 2015, Elhalwani and Bourji entered into a worldwide Exclusive Cooperation Contract (“Agreement”) wherein Elhalwani would provide Bourji with production and promotion services “in exchange for exclusive rights to Bourji's performances, as well as a percentage of revenue from said performances.” FAC ¶ 40. A copy of the Agreement and a certified English translation of the Agreement was attached to the FAC as Exhibits 1 and 2, respectively. The term of the Agreement was for ten years of the date of execution, or until July 9, 2025. FAC ¶ 45.

         Bourji agreed to perform a series of eight concerts throughout the United States organized by defendants Wanna Investments II, Inc. and Tony Wanna (collectively, “Wanna”) during the month of March 2019. FAC ¶ 47. Bourji alleges that on March 9, 2019, Bourji performed at a Wanna concert in San Francisco, California without Elhalwani's authorization thereby breaching the Agreement. FAC ¶ 13.

         Elhalwani brings five claims of relief. See generally, FAC. As against Bourji, Elhalwani brings a claim for breach of written contract, declaratory relief, and equitable accounting. Id. Elhalwani has since dismissed his claims against all other defendants.

         Bourji was served a copy of the FAC in person on March 23, 2019 at the Ford Community and Performing Arts Center in Michigan by Jeffrey M. Clyburn (“Clyburn”), an investigative consultant and independent contractor for Recon Management Group, LLC. Proof of Service and Affidavit, ECF No. 21. Clyburn asserts that at 8 PM on March 22, 2019 he arrived at the venue and made contact with the onsite Security Director and advised him that he was there to serve Bourji. Id. at 3. Clyburn was then contacted by the Bourji's road agent who asked him to delay service until after the conclusion of Bourji's performance at the venue. Id. The road manager then took a photo of the Clyburn and informed him that he would pass it on to Bourji so that he would know what Clyburn looked like once Clyburn approached him to complete service. Id. After making eye contact with Bourji on several occasions prior to Bourji's performance, Clyburn approached Bourji once the performance ended at 1:50 AM on March 23, 2019 as Bourji exited the venue towards a running and waiting vehicle. Id. at 3-4. Clyburn told Bourji he was being served and then attempted to hand him the document. Id. at 4. Bourji ignored Clyburn as he extended the documents and allowed the documents to touch his back as they fell to the ground. Id. Bourji “then immediately stopped, picked up the documents and entered the awaiting vehicle.” Id.

         II. Legal Standard

         A. Default Judgment

         Before a court can enter a default judgment against a defendant, a plaintiff must satisfy the procedural and substantive requirements for default judgment.

         1. Procedural Requirements

         For a default judgment, a plaintiff must satisfy the procedural requirements of the Federal Rules of Civil Procedure. Rule 54(c) states that a default judgment cannot grant relief that is different from the requested relief in a complaint. Fed.R.Civ.P. 54(c). Under Rule 55(a), a clerk must enter a default when a defendant has failed to plead, defend, or appear in any form. Fed.R.Civ.P. 55(a). Lastly, if a defaulting party has appeared in an action, then a plaintiff needs to serve a motion for default on the defaulting party. Fed.R.Civ.P. 55(b)(2).

         In addition, a party seeking a default judgment must satisfy the requirements of Local Rule 55-1. To satisfy Local Rule 55-1, a plaintiff needs to submit a declaration establishing (1) when the clerk entered a default, (2) who the clerk entered the default against, (3) whether the defaulting party is an infant or incompetent, (4) whether the defaulting party is a member of the U.S. military; and (5) ...

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