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Aussieker v. Staccato Properties, LLC

United States District Court, E.D. California

December 26, 2019

STACCATO PROPERTIES, LLC, et al., Defendants.



         Plaintiffs 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”).[1] (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.

         Having considered all written materials submitted with respect to the motion, and after hearing oral argument, the undersigned recommends that plaintiffs' motion be granted.


         Plaintiffs, 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.[2])

         On 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.)

         On 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.)


         Federal 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).

         Where 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).

         Granting 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[2], at 55-24 to 55-26).


         A. Appropriateness of the Entry of Default Judgment under the Eitel Factors

         Plaintiffs' 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.

         1. Factor One: Possibility of Prejudice to Plaintiffs

         The 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 ...

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