GE Capital Franchise Finance Corporation v. Cow Tippers Aramingo et al

Filing 15

ORDER denying 14 Motion for Default Judgment. Plaintiffs shall have until 6/5/2009 to file a new motion for default judgment consistent with this order. Signed by Judge David G Campbell on 5/22/2009.(NVO)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) ) Plaintiff, ) ) vs. ) Cow Tippers Aramingo, a Pennsylvania ) ) limited liability company, et al., ) ) Defendants. ) GE Capital Franchise Finance Corporation, a Delaware corporation,

No. CV-09-0082-PHX-DGC ORDER

Plaintiff GE Capital Franchise Finance Corporation filed a complaint against Defendants Cow Tippers Aramingo, LLC, Horn Restaurants, LLC, Sensational Sandwich Company Aramingo, LLC, Charles Fletcher, Jeff Horn, and James Sweet on January 13, 2009 asserting various federal law claims arising from Defendants' alleged failure to pay pursuant to certain loan agreements. Dkt. #1. Plaintiff has filed a motion for default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure. Dkt. #14. For reasons that follow, the Court will deny the motion without prejudice. Because Defendants' default has been properly entered under Rule 55(a) (see Dkt. ##10-11), the Court has discretion to grant default judgment against Defendants pursuant to Rule 55(b). See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). Factors the Court should consider in deciding whether to grant default judgment include (1) the possibility of prejudice to Plaintiff, (2) the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake,

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if any, (5) the possibility of a dispute concerning material facts, (6) whether default was due to excusable neglect, and (7) the policy favoring a decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Because Plaintiff does not address the Eitel factors (see Dkt. #14), the Court will deny the motion for default judgment without prejudice. Plaintiff shall have until June 5, 2009 to refile the motion. The new motion shall fully address each Eitel factor and also shall include an explanation and evidence sufficient to support any calculation of damages. See Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (factual allegations of the complaint relating to the amount of damages are not taken as true on a motion for default judgment); Fed. R. Civ. P. 8(b)(2)(6) ("An allegation ­ other than one relating to the amount of damages ­ is admitted if a responsive pleading is required and the allegation is not denied."). IT IS ORDERED: 1. 2. Plaintiff's motion for default judgment (Dkt. #14) is denied without prejudice. Plaintiff shall have until June 5, 2009 to file a new motion for default judgment consistent with this order. DATED this 22nd day of May, 2009.

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