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Olive v. Robinson

United States District Court, W.D. Washington, Seattle

September 30, 2019




         On June 27, 2019, the Court entered an Order of Default as to Defendant Justus Keppel only. Dkt. 53. Thereafter, Plaintiff filed a motion for the entry of a default judgment, along with a brief, affidavits, and supporting documents. Dkt. 54. Defendant Keppel filed no response. On September 3, 2019, Plaintiff provided additional evidence. Dkts. 59 and 60.

         Having carefully reviewed Plaintiff's claims and the evidence submitted, the Court finds that the motion should be granted in part and denied in part, as described herein.


         In his Amended Complaint, Plaintiff alleges Defendants Robinson and Keppel[1] made statements on a Facebook website that were knowingly false when made, were intended to harm him, and that caused him to suffer financial and emotional injuries in excess of $1.5 million. Dkt. 11. This case was automatically stayed as to Defendant Robinson after she filed for Chapter 7 bankruptcy. See Dkt. 52.

         The procedural history of this case and relevant facts leading to entry of an order of default against Defendant Keppel are set forth in the Court's Order of Default and Briefing Schedule. Dkt. 53. Additional facts and procedure are discussed where relevant herein.


         A. Entry of Default Order

         Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) 55(b) authorizes a district court to grant default judgment. Typically, default judgment is entered after the Clerk of Court has entered default under Rule 55(a). However, district courts also have the authority to declare a default as a sanction. See, e.g., Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir.2011); Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir.1990). Before doing so, a court must consider: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the other party; (4) the public policy favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions. Id.

         The Court thoroughly analyzed the foregoing factors and concluded that sanctions, including terminating sanctions, were warranted due to Defendant Keppel's continued failure to respond to discovery requests and his willful disobedience of this Court's orders. Dkt. 49. Rather than issue terminating sanctions at that time however, the Court issued the lesser sanction of a $500 payment and another deadline to submit discovery responses. Id. After Defendant Keppel failed to comply with these lesser sanctions, the Court entered an Order of Default as to Defendant Keppel and set a briefing schedule for the parties to submit briefs and evidence to assist the Court in determining an award of damages. Dkt. 53, p. 5. Specifically, Plaintiff was directed to submit a declaration and other evidence establishing his entitlement to a sum certain and to any other nonmonetary relief sought. Id.

         Plaintiff filed a brief in support of his motion for default judgment and declarations. Dkts. 54, 55, and 56. After review, the Court found the evidence submitted by Plaintiff was insufficient to determine whether his damage claims are fair, reasonable, and related to his claims. Because Plaintiff is pro se, the Court allowed Plaintiff to support additional proof. Defendant Keppel was also allowed time to respond to any additional proof submitted. Dkt. 58, p. 5. Plaintiff submitted his additional proof (Dkts. 59 and 60), which is discussed in more detail herein. Defendant Keppel again filed no response.

         B. Standards Governing Entry of Default Judgment

         Motions for entry of default judgment are governed by 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).

         Granting 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 adequately proven the amount of damages he seeks, the Court considers the following factors:

(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”).

         At the default judgment stage, the court presumes all well-pleaded factual allegations are true, except those related to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987); Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir.1977); Microsoft Corp. v. Lopez, 2009 WL 959219 (W.D.Wash.2009). Judgment by default is an extreme measure and a case should, “whenever possible, be decided on the merits.” Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1170 (9th Cir. 2002); also see Westchester Fire Ins. Co. v. Mendez, 585 F.3d 1183, 1189 (9th Cir. 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)).

         C. Jurisdiction

         “To avoid entering a default judgment that can later be successfully attacked as void, a court should determine whether it has the power, i.e., the jurisdiction, to enter the judgment in the first place.” See In re Tuli, 172 F.3d 707, 712 (9th Cir.1999). In his Amended Complaint, Plaintiff invokes the diversity jurisdiction of the Court pursuant to 28 U.S.C. § 1332(a)(2) because he is a citizen of Maryland and Defendant Keppel is a citizen of the State of Washington, and the amount in controversy exceeds $75, 000.00. Dkt. 11, p. 2. There is no federal question asserted in the Amended Complaint. In his Answer to the Amended Complaint, Defendant Keppel admits that this Court has diversity jurisdiction in this matter. Dkt. 18, p. 2.

         D. Eitel Factors

         1. Possibility of Prejudice to Plaintiff

         The first factor considers whether Plaintiff will suffer prejudice if default judgment is not entered. See PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D.Cal.2002). Absent entry of default judgment, Plaintiff would be without another recourse for recovery. Defendant Keppel denied the factual allegations comprising Plaintiff's claims. Dkt. 18. Thereafter, he has failed to otherwise defend this action, has ignored discovery requests, and has repeatedly ignored the Court's orders. As a result, Plaintiff's claims cannot move forward on the merits and his ability to obtain effective relief will be negatively impacted. Elektra Entm't Grp. Inc. v. Crawford, 226 F.R.D. 388, 391 (C.D. Cal. 2005). Accordingly, the first Eitel factor favors default judgment.

         2. Merits of Plaintiff's Substantive Claims

         For purposes of liability the well-pleaded factual allegations in the complaint are taken as true on default. Geddes, 559 F.2d at 560. Plaintiff seeks default judgment against Defendant Keppel for defamation and the intentional infliction of emotional distress. Although set out as a separate claim, Plaintiff's allegations of “aiding and abeting” are reviewed in context of his substantive claims. In addition, Plaintiff alleges “joint and ...

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