Best Western International Incorporated v. OP Hotel LLC

• Court: District Court, D. Arizona
• Decided: April 22, 2024
• Docket: 2:23-cv-01166
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Best Western International Incorporated, No. CV-23-01166-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 OP Hotel LLC, David Nedunilam, and Jane Doe Nedunilam, 13 Defendants. 14 15 Pending before the Court is Plaintiff Best Western International Inc.’s Motion for 16 Default Judgment against Defendants OP Hotel LLC and David Nedunilam. (Doc. 16). The 17 Court now rules on the motion. 18 I. BACKGROUND 19 On June 23, 2023, Plaintiff filed a complaint against Defendants for breach of 20 contract and breach of the implied covenant of good faith and fair dealing. (Doc. 1). 21 Plaintiff alleges that Defendants breached a Best Western Membership Agreement 22 (“Membership Agreement”) and failed to pay the outstanding balance as required by the 23 Membership Agreement and Regulatory Documents. (Id. at 7). Defendants failed to file an 24 answer or response. Upon Plaintiff’s application, the Clerk of the Court entered default 25 against Defendants OP Hotel and David Nedunilam on October 19, 2023. (Doc. 14). On 26 December 22, 2023, Plaintiff filed the pending Motion for Default Judgment on Count I of 27 the Complaint for breach of contract. (Doc. 16). 28 1 II. DISCUSSION 2 Typically, in deciding whether to grant a motion for default judgment, the Court 3 would consider the factors laid out in Eitel v. McCool, 782 F.2d 1470, 1471–71 (9th Cir. 4 1986). However, Plaintiff has named Jane Doe Nedunilam in its Complaint, (Doc. 1), and 5 does not seek default against Jane Doe. Plaintiff also has multiple claims in its Complaint 6 but has only moved for default on breach of contract. The Court cannot determine that there 7 is no just reason for delay for entering partial judgment under Federal Rule of Civil 8 Procedure 54(b).1 Accordingly, Plaintiff’s Motion is denied without prejudice. 9 Even if there was not the Rule 54(b) issue with Jane Doe and multiple claims, the 10 Court has serious concerns about personal service on Defendant David Nedunilam. The 11 following is an excerpt from the process server, giving details of the service of Mr. 12 Nedunilam: 13 Service Details: Sept. 1, 2023, 4:39 pm: This is a large house with a gate surrounding the estate. There is no intercom to contact the residents at the 14 entrance. A female happened to be leaving on foot at the gate while I was 15 there[,] and I contacted her at that time. She stated that she lived there but would not provide a first name. She would not confirm if the defendant lived 16 there or not and any relationship to him or his family. She confirmed that the 17 defendant’s family lives there[,] but that is all the information she would provide, along with her last name, Joseph. No vehicles were observed at the 18 property. I served her with both sets of documents, for David Nedunilam and 19 Jane Doe Nedunilam.

20 1 Moreover, in another case, this Court has stated: 21 The Court has entered default judgment against “Jane Doe Simpson” at Plaintiff’s request. The Court does not believe a judgment can be collected 22 against a fictitious party, and this Order does not alter that reality. However, 23 the Court will not spend any more time or effort on this default judgment to educate counsel on how to proceed procedurally. Plaintiff’s counsel has 24 already been instructed how to correctly proceed in these circumstances. See Aguirre v. Custom Image Pros LLC, CV-419-PHX-ROS, Doc 13 (D. Ariz. 25 Oct. 13, 2023) (explaining to Plaintiff’s counsel how to seek default against 26 Jane Doe Simpson specifically). Thus, if Plaintiff’s counsel is satisfied with what appears to the Court to be an uncollectible judgment, the Court will not 27 preclude the same. 28 Peralta v. Custom Image Pros LLC et al., No. CV-23-00358-PHX-JAT, 2023 WL 8455120, at *5 n.3 (D. Ariz. Dec. 6, 2023). (Doc. 11). Plaintiff must explain to the Court its basis for why it believes that Defendant 2 || David Nedunilam lives at the residence where service was executed. I. CONCLUSION 4 Based on the foregoing, 5 IT IS ORDERED that Plaintiff's Motion for Default Judgment, (Doc. 16), is || DENIED without prejudice. 7 IT IS FURTHER ORDERED that Plaintiff must show cause why the entry of 8 || default against Defendant David Nedunilam should not be vacated for failure to properly 9|| serve. Plaintiff will have fourteen (14) days from the date of this Order to show cause. 10 Dated this 22nd day of April, 2024. 11 12 a 13 14 _ James A. Teil Org Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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