1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 JS FREIGHT LLC, Case No. 1:24-cv-00430-JLT-BAM 10 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S MOTION FOR 11 v. DEFAULT JUDGMENT 12 SNOW JOE LLC, (Doc. 20) 13 Defendant. FOURTEEN (14) DAY DEADLINE 14 15 Currently pending before the Court is Plaintiff JS Freight LLC’s motion for default 16 judgment against Defendant Snow Joe LLC. (Doc. 20.) The motion was referred to the 17 undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Defendants did not file an 18 opposition to the motion, and the time in which to do so has passed. L.R. 230(c) (“Opposition . . 19 . to the granting of the motion shall be in writing and shall be filed and served no later than 20 fourteen (14) days after the motion was filed”.) 21 Having considered the moving papers, supplemental briefing, and the record in this action, 22 and for the reasons that follow, the Court RECOMMENDS that Plaintiff’s motion for default 23 judgment be denied. 24 I. FACTUAL AND PROCEDURAL BACKGROUND 25 On April 10, 2024, Plaintiff filed this action alleging a breach of contract by Defendant 26 due to Defendant’s failure to fully pay for the services rendered by Plaintiff. (Doc. 1.) On April 27 17, 2024, District Judge Jennifer L. Thurston issued an order dismissing the matter without 28 1 prejudice due to lack of subject matter jurisdiction and permitting Plaintiff to file an amended 2 complaint. (Doc. 4.) Plaintiff filed its First Amended Complaint on May 8, 2024. (Doc. 5.) 3 On July 9, 2024, Plaintiff filed a proof of service stating that Defendant Snow Joe LLC 4 was served on July 2, 2024. (Doc. 9.) On July 10, 2024, the Court convened a status conference 5 to address service of process. Plaintiff's counsel noted that Plaintiff had filed a proof of service 6 on July 9, 2024, which showed personal service upon Defendant Snow Joe LLC by personal 7 service upon Joseph Cohen. (Doc. 11.) At the hearing, Plaintiff's counsel stated that Joseph 8 Cohen was the agent for service of process for Defendant Snow Joe LLC. (Id.) On September 5, 9 2024, default was entered against Defendant Snow Joe LLC. (Doc. 15.) 10 On November 18, 2024, Plaintiff filed a Motion for Default Judgment. (Doc. 18.) The 11 Court issued a minute order noting that the motion did not comply with Federal Rule of Civil 12 Procedure 55(b)(1) for entry of default judgment by the Clerk, nor did it comply with Rule 13 55(b)(2) for entry of default judgment by the Court. (Doc. 19.) The Court further directed 14 Plaintiff to file an amended motion for default judgment that complied with Rule 55(b). (Id.) 15 Plaintiff subsequently filed a motion for default judgment on November 26, 2024. (Doc. 20.) 16 II. LEGAL STANDARD 17 Federal Rule of Civil Procedure 55(b)(1) outlines the circumstances under which the clerk 18 of the court may enter default judgment. “If the plaintiff's claim is for a sum certain or a sum that 19 can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit 20 showing the amount due--must enter judgment for that amount and costs against a defendant who 21 has been defaulted for not appearing and who is neither a minor nor an incompetent person.” 22 Fed. R. Civ. P. 55(b)(1). Federal Rule of Civil Procedure 55(b)(2) states that in “all other cases, 23 the party must apply to the court for a default judgment.” Fed. R. Civ. P. 55(b)(2). “The court 24 may conduct hearings or make referrals--preserving any federal statutory right to a jury trial-- 25 when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the 26 amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any 27 other matter.” Id. “Upon default, the well-pleaded allegations of a complaint relating to liability 28 are taken as true.” Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1 1323 (7th Cir. 1983); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). 2 Factors which may be considered by courts in exercising discretion as to the entry of a 3 default judgment include: (1) the possibility of prejudice to the plaintiff; (2) the merits of 4 plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in 5 the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was 6 due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil 7 Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 8 1986); PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002). 9 III. DISCUSSION 10 First, Plaintiff’s motion for default judgment does not meet the requirements of Rule 11 55(b)(1). Plaintiff’s motion “requests that judgment by default be entered for the relief requested 12 in Plaintiff’s complaint on file in this case” and states “All parts of the Plaintiff’s claim is 13 liquidated and proved by an instrument in writing.” (Doc. 20 at 2.) However, the supporting 14 affidavit only includes information regarding service of the complaint, Defendant’s time to 15 respond, and Defendant’s status as neither a minor nor incompetent person. (Id. at 3-4.) To the 16 extent that Plaintiff seeks “for a sum certain or a sum that can be made certain by computation” 17 by the clerk of court under Rule 55(b)(1), Plaintiff has not included the requisite “affidavit 18 showing the amount due” that the Rule requires. Fed. R. Civ. P. 55(b)(1). Plaintiff is therefore 19 not entitled to default judgment under Rule 55(b)(1). 20 Further, the Court finds that default judgment by the Clerk is not appropriate in this case. 21 While the first amended complaint seeks a “sum certain,” such sum is calculable only by 22 reference to voluminous legal documents, without any monetary value, attached to the complaint. 23 (See Doc. 5.) Such calculations are beyond the ministerial functions of the Clerk. In the Rule 55 24 context, a claim is not a sum certain unless there is no doubt as to the “amount to which a plaintiff 25 is entitled as a result of the defendant's default.” Franchise Holding II, LLC v. Huntington 26 Restaurants Group, Inc., 375 F.3d 922, 928-29 (9th Cir. 2004). Given these circumstances, the 27 appropriate Rule 55 method for a default judgment is to apply to the Court pursuant to Rule 28 55(b)(2). 1 Second, to the extent that Plaintiff is applying to the Court for a default judgment, Plaintiff 2 addresses none of the Eitel factors, solely including a supporting affidavit which states: the date 3 of service, that Defendant’s time to respond has expired, and that Defendant is neither a minor 4 nor an incompetent person. (Doc.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 JS FREIGHT LLC, Case No. 1:24-cv-00430-JLT-BAM 10 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S MOTION FOR 11 v. DEFAULT JUDGMENT 12 SNOW JOE LLC, (Doc. 20) 13 Defendant. FOURTEEN (14) DAY DEADLINE 14 15 Currently pending before the Court is Plaintiff JS Freight LLC’s motion for default 16 judgment against Defendant Snow Joe LLC. (Doc. 20.) The motion was referred to the 17 undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Defendants did not file an 18 opposition to the motion, and the time in which to do so has passed. L.R. 230(c) (“Opposition . . 19 . to the granting of the motion shall be in writing and shall be filed and served no later than 20 fourteen (14) days after the motion was filed”.) 21 Having considered the moving papers, supplemental briefing, and the record in this action, 22 and for the reasons that follow, the Court RECOMMENDS that Plaintiff’s motion for default 23 judgment be denied. 24 I. FACTUAL AND PROCEDURAL BACKGROUND 25 On April 10, 2024, Plaintiff filed this action alleging a breach of contract by Defendant 26 due to Defendant’s failure to fully pay for the services rendered by Plaintiff. (Doc. 1.) On April 27 17, 2024, District Judge Jennifer L. Thurston issued an order dismissing the matter without 28 1 prejudice due to lack of subject matter jurisdiction and permitting Plaintiff to file an amended 2 complaint. (Doc. 4.) Plaintiff filed its First Amended Complaint on May 8, 2024. (Doc. 5.) 3 On July 9, 2024, Plaintiff filed a proof of service stating that Defendant Snow Joe LLC 4 was served on July 2, 2024. (Doc. 9.) On July 10, 2024, the Court convened a status conference 5 to address service of process. Plaintiff's counsel noted that Plaintiff had filed a proof of service 6 on July 9, 2024, which showed personal service upon Defendant Snow Joe LLC by personal 7 service upon Joseph Cohen. (Doc. 11.) At the hearing, Plaintiff's counsel stated that Joseph 8 Cohen was the agent for service of process for Defendant Snow Joe LLC. (Id.) On September 5, 9 2024, default was entered against Defendant Snow Joe LLC. (Doc. 15.) 10 On November 18, 2024, Plaintiff filed a Motion for Default Judgment. (Doc. 18.) The 11 Court issued a minute order noting that the motion did not comply with Federal Rule of Civil 12 Procedure 55(b)(1) for entry of default judgment by the Clerk, nor did it comply with Rule 13 55(b)(2) for entry of default judgment by the Court. (Doc. 19.) The Court further directed 14 Plaintiff to file an amended motion for default judgment that complied with Rule 55(b). (Id.) 15 Plaintiff subsequently filed a motion for default judgment on November 26, 2024. (Doc. 20.) 16 II. LEGAL STANDARD 17 Federal Rule of Civil Procedure 55(b)(1) outlines the circumstances under which the clerk 18 of the court may enter default judgment. “If the plaintiff's claim is for a sum certain or a sum that 19 can be made certain by computation, the clerk--on the plaintiff's request, with an affidavit 20 showing the amount due--must enter judgment for that amount and costs against a defendant who 21 has been defaulted for not appearing and who is neither a minor nor an incompetent person.” 22 Fed. R. Civ. P. 55(b)(1). Federal Rule of Civil Procedure 55(b)(2) states that in “all other cases, 23 the party must apply to the court for a default judgment.” Fed. R. Civ. P. 55(b)(2). “The court 24 may conduct hearings or make referrals--preserving any federal statutory right to a jury trial-- 25 when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the 26 amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any 27 other matter.” Id. “Upon default, the well-pleaded allegations of a complaint relating to liability 28 are taken as true.” Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1 1323 (7th Cir. 1983); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). 2 Factors which may be considered by courts in exercising discretion as to the entry of a 3 default judgment include: (1) the possibility of prejudice to the plaintiff; (2) the merits of 4 plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in 5 the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was 6 due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil 7 Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 8 1986); PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002). 9 III. DISCUSSION 10 First, Plaintiff’s motion for default judgment does not meet the requirements of Rule 11 55(b)(1). Plaintiff’s motion “requests that judgment by default be entered for the relief requested 12 in Plaintiff’s complaint on file in this case” and states “All parts of the Plaintiff’s claim is 13 liquidated and proved by an instrument in writing.” (Doc. 20 at 2.) However, the supporting 14 affidavit only includes information regarding service of the complaint, Defendant’s time to 15 respond, and Defendant’s status as neither a minor nor incompetent person. (Id. at 3-4.) To the 16 extent that Plaintiff seeks “for a sum certain or a sum that can be made certain by computation” 17 by the clerk of court under Rule 55(b)(1), Plaintiff has not included the requisite “affidavit 18 showing the amount due” that the Rule requires. Fed. R. Civ. P. 55(b)(1). Plaintiff is therefore 19 not entitled to default judgment under Rule 55(b)(1). 20 Further, the Court finds that default judgment by the Clerk is not appropriate in this case. 21 While the first amended complaint seeks a “sum certain,” such sum is calculable only by 22 reference to voluminous legal documents, without any monetary value, attached to the complaint. 23 (See Doc. 5.) Such calculations are beyond the ministerial functions of the Clerk. In the Rule 55 24 context, a claim is not a sum certain unless there is no doubt as to the “amount to which a plaintiff 25 is entitled as a result of the defendant's default.” Franchise Holding II, LLC v. Huntington 26 Restaurants Group, Inc., 375 F.3d 922, 928-29 (9th Cir. 2004). Given these circumstances, the 27 appropriate Rule 55 method for a default judgment is to apply to the Court pursuant to Rule 28 55(b)(2). 1 Second, to the extent that Plaintiff is applying to the Court for a default judgment, Plaintiff 2 addresses none of the Eitel factors, solely including a supporting affidavit which states: the date 3 of service, that Defendant’s time to respond has expired, and that Defendant is neither a minor 4 nor an incompetent person. (Doc. 20 at 4.) As the Court typically utilizes the Eitel factors in its 5 analysis of motions for default judgment, the failure by the party seeking default judgment to 6 address them weighs against granting Plaintiff’s motion for default judgment. Plaintiff is 7 therefore not entitled to default judgment under Rule 55(b)(2). 8 As Plaintiff’s motion for default judgment again does not comply with the requirements of 9 Federal Rule of Civil Procedure 55, the Court will recommend denying Plaintiff’s motion for 10 default judgment. 11 IV. CONCLUSION AND RECOMMENDATION 12 Based on the foregoing, the Court HEREBY RECOMMENDS that Plaintiff’s motion for 13 default judgment (Doc. 20) be denied without prejudice. Plaintiff is HEREBY ORDERED to 14 mail a copy of these findings and recommendations to Defendant at Defendant’s last known 15 address. 16 These Findings and Recommendations will be submitted to the United States District 17 Judge assigned to the case, as required by 28 U.S.C. § 636(b)(l). Within fourteen (14) days after 18 being served with these findings and recommendations, the parties may file written objections 19 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 20 and Recommendations.” The parties are advised that the failure to file objections within the 21 specified time may result in the waiver of the “right to challenge the magistrate’s factual 22 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 23 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25
26 Dated: December 11, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27