Case No. CV 11-0433 PSG (JCx)
CIVIL MINUTES - GENERAL
Present: The Honorable Philip S. Gutierrez, United States District Judge
Wendy K. Hernandez
Attorneys Present for Plaintiff(s): Not Present
Attorneys Present for Defendant(s): Not Present
Proceedings: (In Chambers) Order DENYING Plaintiff's Motion for Default Judgment
Pending before the Court is Plaintiff James Abbey's ("Plaintiff") motion for default judgment. The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers submitted in support of the motion, the Court DENIES the motion. I. Background
On June 8, 2011, Plaintiff filed a First Amended Complaint against Defendants Euro Taxi, LLC., Dragen Pelic, George Pelic, Aleksandar Stanisick, Craig Smedman, and Milque Stanisick alleging individual and class claims for: (1) failure to pay lawful overtime wages in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., (2) retaliation, (3) violation of California Labor Code §§ 226, 510, and 588, and (4) unfair competition pursuant to Cal. Bus. & Prof. Code § 17200. See FAC, Dkt. #8. On August 22, 2011, the Clerk for the United States District Court for the Central District of California entered default against Defendants Euro Taxi, LLC and Dragen Pelic (collectively, "Defendants"). See Dkt. #29. Defendants George Pelic, Aleksandar Stanisick, and Milque Stanisick were dismissed on September 6. See Dkt. #31. On September 8, 2011, Plaintiff moved for default judgment on his individual claims against Defendants Euro Taxi, LLC and Dragen Pelic, seeking compensatory, liquidated, statutory and punitive damages, prejudgment interest, and attorney's fees and costs. See Mot. 23:10-23. II. Legal Standard
Plaintiff indicates in the motion that he does not intend to continue prosecuting the action against the remaining defendants. See Mot. 3:10. Craig Smedman is the only remaining defendant other than the two defendants against whom default judgment is sought. See Dkt. #31. Accordingly, the Clerk is instructed to dismiss defendant Craig Smedman.
Federal Rule of Civil Procedure 55(b) permits a court-ordered default judgment following the entry of default by the clerk under Rule 55(a). Federal Rule of Civil Procedure 55(b) and Local Rule 55-1 require that applications for default judgment set forth (1) when and against what party default was entered, (2) the pleading on which default was entered, (3) whether the defaulting party is an infant or incompetent person, and if so, whether the person is adequately represented, (4) that the War and National Defense Servicemembers Civil Relief Act (50 App. U.S.C. § 521) does not apply, and (5) that notice of the application has been served on the defaulting party, if required. See Fed. R. Civ. P. 55(b)(2); L.R. 55-1.
Ultimately, the choice as to whether a default judgment should be entered is at the sole discretion of the court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). A defendant's default alone does not entitle a plaintiff to a court-ordered judgment. See id. Instead, the Ninth Circuit has determined that a court should consider seven discretionary factors, often referred to as the "Eitel factors," before rendering a decision on default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). These factors are (1) the possibility of prejudice to the plaintiff, (2) the merits of the 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. See id.
Finally, the Court notes that once the court clerk enters a default, the well-pleaded factual allegations of the complaint are taken as true, except for those allegations relating to damages. See Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). III. Discussion
Plaintiff has not satisfied the procedural requirements for default judgment pursuant to Fed. R. Civ. P. 55(b) and Local Rule 55-1. Specifically, Plaintiff fails to set forth (1) that the First Amended Complaint is the pleading to which default was entered, (2) that Defendants are not infants or incompetent persons, and (3) that Defendants are not in active military service. See Local Rule 55-1; Dkt. #28, 29. Accordingly, the Court declines to consider whether the Eitel factors weigh in favor of entering default judgment at this time. IV. Conclusion
Based on the foregoing, the Court DENIES Plaintiff's motion for default judgment against Defendants without prejudice. Plaintiff has until November 16, 2011 to re-file his motion correcting the procedural deficiencies identified above. Failure to do so will result in dismissal of the action.
IT IS SO ORDERED.