United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
Mark Aussieker and Kimberly Aussieker are proceeding in this
action pro se. This matter was referred to the undersigned in
accordance with Local Rule 302(c)(21) and 28 U.S.C. §
636(b)(1). Pending before the court is plaintiffs' motion
for default judgement against defendant Staccato Properties,
LLC, (“Staccato Properties”). (ECF No. 8.) This
motion came on for hearing before the undersigned on May 17,
2019. (ECF No. 16.) Plaintiff Mark Aussieker appeared in
person on his own behalf. No appearance was made by, or on
behalf of plaintiff Kimberly Aussieker or the defendant.
considered all written materials submitted with respect to
the motion, and after hearing oral argument, the undersigned
recommends that plaintiffs' motion be granted.
proceeding pro se, commenced this action on January 14, 2019,
by filing a complaint and paying the required filing fee.
(ECF No. 1.) Therein, plaintiffs allege that defendant
Staccato Properties, a California Limited Liability
Corporation, placed direct-to-voicemail calls to plaintiffs
on three occasions using an automatic dialer in violation of
the Telephone Consumer Protection Act, (“TCPA”),
47 U.S.C. § 227, et. seq. (Compl. (ECF No. 1)
at 2, 5.)
February 14, 2019, plaintiffs filed proof of service on
defendant Staccato Properties. (ECF No. 7.) That same day,
plaintiffs requested entry of Staccato Properties'
default. (ECF No. 8.) The Clerk of the Court entered Staccato
Properties' default on February 15, 2019. (ECF No. 9.)
March 18, 2019, plaintiffs filed the pending motion for
default judgment. (ECF No. 15.) Plaintiffs' motion seeks
damages and prejudgment interest. (Id. at 8.) On May
17, 2019, a hearing was held before the undersigned on the
motion for default judgement. (ECF No. 16.) Despite being
served with notice of the motion and hearing, defendant did
not appear at the hearing and did not file an opposition to
the motion for default judgement. (ECF No. 15 at 11.)
Rule of Civil Procedure 55(b)(2) governs applications to the
court for default judgment. Upon entry of default, the
complaint's factual allegations regarding liability are
taken as true, while allegations regarding the amount of
damages must be proven. Dundee Cement Co. v. Howard Pipe
& Concrete Prods., 722 F.2d 1319, 1323 (7th Cir.
1983) (citing Pope v. United States, 323 U.S. 1
(1944); Geddes v. United Fin. Group, 559 F.2d 557
(9th Cir. 1977)); see also DirectTV v. Huynh, 503
F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v.
Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
damages are liquidated, i.e., capable of ascertainment from
definite figures contained in documentary evidence or in
detailed affidavits, judgment by default may be entered
without a damages hearing. Dundee, 722 F.2d at 1323.
Unliquidated and punitive damages, however, require
“proving up” at an evidentiary hearing or through
other means. Dundee, 722 F.2d at 1323-24; see
also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).
or denying default judgment is within the court's sound
discretion. Draper v. Coombs, 792 F.2d 915, 924-25
(9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089,
1092 (9th Cir. 1980). The court is free to consider a variety
of factors in exercising its discretion. Eitel v.
McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among
the factors that may be considered by the court are
(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
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, 782 F.2d at 1471-72 (citing 6 Moore's
Federal Practice ¶ 55-05, at 55-24 to 55-26).
Appropriateness of the Entry of Default Judgment under the
motion for default judgement seeks judgement on the
complaint's claims that the defendant violated the TCPA.
(Pl.'s MDJ (ECF No. 15) at 6.) The factual allegations of
plaintiffs' complaint are taken as true pursuant to the
entry of default against the defendant.
Factor One: Possibility of Prejudice to Plaintiffs
first Eitel factor considers whether plaintiffs
would suffer prejudice if default judgment is not entered.
When a defendant has failed to appear and defend the claims,
a plaintiff will be without recourse and suffer prejudice
unless default judgment is entered. Vogel v. Rite Aid
Corp., 992 F.Supp.2d 998, 1007 (C.D. Cal. 2014)
(granting a ...