United States District Court, C.D. California
Present: The Honorable James V. Selna, U.S. District Court
CIVIL MINUTES - GENERAL
[IN CHAMBERS] Minute Order Regarding Motion
for Entry of Default Judgment and Issuance of Permanent
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.
following reasons, the Court DENIES the
motion for entry of default.
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.
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.
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.
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.
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
a court can enter a default judgment against a defendant, a
plaintiff must satisfy the procedural and substantive
requirements for default judgment.
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.
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) ...