Weible v. Mann Bracken, LLC

Filing 13

ORDER denying without prejudice 10 Plaintiff's Motion for Default Judgment. The Clerk is directed to terminate this action if Plaintiff fails to file a new motion for default judgment by March 26, 2010. Signed by Judge David G Campbell on 3/11/10.(LSP)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dennis Weible, Plaintiff, vs. Mann Bracken, LLC, Defendant.

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No. CV-09-1820-PHX-DGC ORDER

Dennis Weible filed a complaint against Mann Bracken, LLC on September 9, 2009, asserting violations of the Fair Debt Collection Practices Act. Dkt. #1. Plaintiff has filed a motion for default judgment. Dkt. #10. The motion will be denied without prejudice. Because Defendant's default has been entered under Rule 55(a) of the Federal Rules of Civil Procedure (Dkt. #9), the Court has discretion to grant default judgment against Defendant 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, (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). Plaintiff's motion for default judgment does not address the Eitel factors. The Court will therefore deny the motion without prejudice. Plaintiff shall have until March 26, 2010

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to re-file 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, including statutory 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)(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. 3. Plaintiff's motion for default judgment (Dkt. #10) is denied without prejudice. Plaintiff shall have until March 26, 2010 to file a new motion. The Clerk is directed to terminate this action if Plaintiff fails to file a new motion for default judgment by March 26, 2010. DATED this 11th day of March, 2010.

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