United States District Court, W.D. Washington, Seattle
ORDER DIRECTING PLAINTIFF TO PROVIDE ADDITIONAL PROOF
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE
27, 2019, the Court entered an Order of Default as to
Defendant Justus Kepel only, and set a schedule for the
parties to submit briefing and affidavits in support or
opposition to Plaintiff's motion for entry of a default
judgment against Defendant Kepel. Dkt. 53. Plaintiff
submitted his brief, affidavits, and supporting documents.
Dkt. 54. Defendant Kepel did not submit any briefing or
respond in any way.
on the information submitted by Plaintiff, the Court is not
able to determine whether the amount of damages Plaintiff
claims is reasonable and demonstrated by the evidence.
Therefore, the Court directs Plaintiff to submit additional
proof, as outlined herein.
for entry of default judgment are governed by Federal Rule of
Civil Procedure (“Fed .R. Civ. P.”) 55(b), which
provides that the Clerk of Court may enter default judgment
when the plaintiff's claim “is for a sum certain or
a sum that can be made certain by computation.”
Fed.R.Civ.P. 55(b)(1). When the value of the claim cannot be
readily determined, or when the claim is for non-monetary
relief, the plaintiff must move the court for entry of
default judgment. Id. at 55(b)(2). In such
circumstances, the court has broad discretion to marshal any
evidence necessary in order to calculate an appropriate
award. See id. at 55(b)(2) (A)-(D).
or denying relief is entirely within the court's
discretion and thus, a defendant's default does not
automatically entitle a plaintiff to a court ordered
judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th
Cir.1980). In addition to determining whether Plaintiff has
appropriately proven the amount of damages he seeks, the
Court considers the following factors in exercising its
discretion to award a default judgment:
(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 v. McCool, 782 F.2d 1470, 1471-72 (9th
Cir.1986) (the “Eitel factors”).
default judgment stage, well-pleaded factual allegations are
considered admitted and are sufficient to establish a
defendant's liability, but allegations regarding the
amount of damages must be proven. Geddes v. United Fin.
Group, 559 F.2d 557, 560 (9th Cir.1977); Microsoft
Corp. v. Lopez, 2009 WL 959219 (W.D.Wash.2009). Also,
“necessary facts not contained in the pleadings, and
claims which are legally insufficient, are not established by
default.” Cripps v. Life Ins. Co. of N. Am.,
980 F.2d 1261, 1267 (9th Cir.1992) (citing Danning v.
Lavine, 572 F.2d 1386, 1388 (9th Cir.1978)). The court
must ensure that the amount of damages is reasonable and
demonstrated by the evidence. See Fed. R. Civ. P.
55(b); Getty Images (US), Inc. v. Virtual
Clinics, 2014 WL 358412 (W.D.Wash.2014). Plaintiff is
required to prove all damages sought in the complaint. In
addition, “[a] judgment by default shall not be
different in kind [or] exceed in amount that prayed for in
the [complaint].” Fed.R.Civ.P. 54(c). In determining
damages, a court can rely on the declarations submitted by
the plaintiff or order a full evidentiary hearing.
Amended Complaint, Plaintiff requests general and special
damages (including loss of past and future income, benefits,
and pension), for past and future pain and suffering, and for
the costs of this action. Dkt. 11, p. 7. In his Brief in
Support of Default Judgment, Plaintiff has added a request
for declaratory judgment (finding that Defendant Keppel
engaged in conduct with malice, oppression, or fraud) and
punitive damages in the amount of $500, 000.00. Dkt. 54, p.
6. Because these additional damages are different in kind and
exceed in amount that prayed for in Plaintiff's Amended
Complaint, they will not be considered.
regard to his defamation claim, Plaintiff asserts in a
declaration that Defendant Kepel made false statements on
Facebook “and other websites” on July 11, 2016,
and that between July 5, 2016 through August 30, 2016,
continued to publish known false statements to injure
Plaintiff's reputation. Dkt. 54-1, p. 3. Further, on
November 2, 2016 and November 3, 2016, Defendant Robinson
stated on Facebook that she knew her allegations against
Plaintiff were false, and that Defendants Robinson and Kepel
posted no fewer than nine times on social media pages
“such as Facebook, ” making false statements
regarding Plaintiff. Id., p. 3. However, Plaintiff
has provided no supporting evidence of the “known false
statements, ” i.e., the Facebook or other
website posts to support the merits of his substantive claim.
He has also failed to meet his burden of proving damages
related to this claim.
alleges that Defendant Kepel's defamatory statements
spread throughout the photographic community and caused
Plaintiff to lose several business contracts worth
approximately $24, 383.00. In support, Plaintiff attaches
copies of his business tax schedules showing business losses,
but the losses are not identified. Plaintiff also has
provided no evidence of the actual business contracts or
other evidence showing that the contracts were lost due to
the alleged defamation. See LCR 55(b)(2)(A)
(“If the claim is based on a contract plaintiff shall
provide the court with a copy of the contract and cite the
provides his affidavit, the affidavit of an accountant, and
an “Administrative Discharge Board Report, ” in
support of his claim that Defendant Kepel's defamatory
statements resulted in Plaintiff's dishonorable discharge
from the United States Marine Corps six years short of his
retirement. The damages Plaintiff attributes to his discharge
are in excess of $1 million ($249, 726.00 income; $148,
297.00 housing; and $719, 418.00 pension). Plaintiff did not
provide the supporting documents which provide the basis for
his discharge. Dkt. 54-1, p. 10 (“facts and
circumstances and supporting documents which are the basis of
the board's findings and recommendations are in the
record (enclosure (1))”). The discharge report itself
contains no evidence that his discharge was in any way
related to Plaintiff's defamation or intentional
infliction of emotional distress claims. The accountant's
affidavit is of little help in this regard as it merely
multiplies the amounts Plaintiff contends he would have
received during an additional six years in the military and
for his retirement. Plaintiff must provide the underlying
documents supporting his discharge before the Court may
consider these claimed damages.
also requests $7, 179.09 in medical bills and in support, has
submitted a medical bill for “Emergency Eval &
Mgmt” on February 27, 2019, in the amount of $1,
708.00; and a medical bill for “CT-Head, Emer Room, IV
Therapy, Laboratory, and Pharmacy on February 27, 2019. These
documents are not sufficient for the Court to determine
whether in fact, the medical bills are related to
Plaintiff's claims of defamation and intentional
infliction of ...