United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE
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.
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.
Amended Complaint, Plaintiff alleges Defendants Robinson and
Keppel 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.
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.
Entry of Default Order
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.
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.
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
Standards Governing Entry of Default Judgment
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).
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”).
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)).
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.
Possibility of Prejudice to Plaintiff
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
Merits of Plaintiff's Substantive Claims
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