Gerow v. United States Department of Justice

Opinion

1 WO 2 3 4 5 8 9 No. CV-23-1059-PHX-DGC 10 Eric Gerow, ORDER 11 Plaintiff, 12 v. 13 Anthony Falcone; Tom Blackwell; Blackwell Automotive Inc.; and Ray Lata, 14 Defendants. 15

16 17 Plaintiff Eric Gerow moves for entry of default and default judgment against 18 Defendant Ray Lata. Doc. 188. The Court will deny the motion. 19 I. Entry of Default Under Rule 55(a). 20 On July 21, 2025, the Court entered an order authorizing Plaintiff to serve Defendant 21 Lata by mailing the operative complaint, summons, and a copy of the order to Lata at his 22 last known business or residential address. Doc. 183 at 1 (citing Fed. R. Civ. P. 4(e)(1); 23 Ariz. R. Civ. P. 4.1(k)(2)). Federal Rule of Civil Procedure 55(a) provides for entry of 24 default where “a party against whom a judgment for affirmative relief is sought has failed 25 to plead or otherwise defend, and that failure is shown by affidavit or otherwise[.]” 26 Plaintiff asserts that he mailed the complaint and other documents to Defendant Lata 27 on July 24, 2025 (Doc. 188 ¶ 16), but provides no proof of service showing that the 28 purported service was properly made. He does not describe the manner in which the 1 documents were mailed (e.g., first class, certified mail, etc.) and to which specific address 2 (last known personal or business address). See Paradise v. California, No. 2:25-CV- 3 02358-MRA-DFM, 2025 WL 2092821, at *2 (C.D. Cal. June 10, 2025) (“The purpose of 4 filing a proof of service is to confirm that a defendant has been properly served. If the 5 proof of service does not reflect as much, then its presence on the docket alone is 6 insufficient to deem a defendant properly served. Plaintiff must show that service of 7 process was effectuated in a manner consistent with Federal Rule of Civil Procedure 4.”); 8 Tolbert v. Nevada, No. 2:24-CV-01443-JAD-DJA, 2025 WL 1249134, at *1 (D. Nev. Apr. 9 29, 2025) (“[W]ithout proper service of process, the district court has no power to render 10 any judgment against the defendant’s person or property unless the defendant has 11 consented to jurisdiction or waived the lack of process. So Tolbert’s motion for entry of 12 default is denied.”) (citation modified). 13 The Court will deny Plaintiff’s request for entry of default against Defendant Lata. 14 II Default Judgment Under Rule 55(b). 15 Pursuant to Rule 55(b)(1), Plaintiff seeks default judgment against Defendant Lata 16 in the “sum certain” amount of $42,000,508.24. Doc. 188 ¶¶ 6, 21. Plaintiff seeks $2 17 million for each of the seventeen counts asserted against Defendant Lata, with damages on 18 the two racketeering counts trebled to $6 million, plus $508.24 in costs. Doc. 188-1 ¶¶ 9- 19 11; see Doc. 169 ¶¶ 70-137. But most of the claims, including those for fraud, breach of 20 contract, negligence, and slander, are not subject to an award of sum certain damages. 21 Even if Defendant Lata’s default were to be entered, that would not automatically 22 entitle Plaintiff to a court-ordered judgment against Lata. See PepsiCo, Inc. v. Cal. Sec. 23 Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002); Aldabe v. Aldabe, 616 F.2d 1089, 24 1092 (9th Cir. 1980) (“The district court’s decision whether to enter a default judgment is 25 a discretionary one.”). The rule in this Circuit is “that default judgments are ordinarily 26 disfavored. Cases should be decided upon their merits whenever reasonably possible.” 27 Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986). Plaintiff does not address the factors 28 to be considered in deciding whether default judgment is appropriate: (1) the possibility of prejudice to the plaintiff, (2) the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of factual disputes, (6) whether default 3 is due to excusable neglect, and (7) the policy favoring decisions on the merits. See id. at 4| 1471-72. 5 Nor does Plaintiff present evidence to determine damages. While the Court may 6| generally take as true the factual allegations of the complaint, it may not simply accept the amount of damages Plaintiff requests. See Fed. R. Civ. P. 55(b)(2); Geddes v. United Fin. 8| Grp., 559 F.2d 557, 560 (9th Cir. 1977). “There must be an evidentiary basis for the 9| damages sought by [P]laintiff.” Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012) (citations omitted); see also Holtsinger v. Briddle, No. CIV-S-03-0732-MCE-CMK-P, 2007 WL 1080112, at *1 (E.D. Cal. Apr. 4, 2007) (“When a plaintiff’s damages are unliquidated ... they require 13 | ‘proving up’ through an evidentiary hearing or some other means.”) (citations omitted). 14 Other than a conclusory affidavit asserting the amount of damages sought (Doc. 188-1), 15 | Plaintiff presents no evidence to establish the actual damages to which he may be entitled, let alone the $42 million he seeks. 17 The Court will deny Plaintiff's request for default judgment against Defendant Lata. 18 IT IS ORDERED that Plaintiff's motion for entry of default and default judgment 19| against Defendant Lata (Doc. 188) is denied. 20 Dated this 29th day of September, 2025. 21 . 22 pereod 6, Cane plhel 23 David G. Campbell 24 Senior United States District Judge 25 26 27 28