Liberty West Regional Center LLC v. Carpanzano et al

Filing 38

ORDER denying 28 Motion for Default Judgment. Plaintiff shall have until 1/31/2014 to refile the motion for default judgment. Signed by Judge David G Campbell on 1/14/2014.(DGC, nvo)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Liberty West Regional Center, LLC, an Arizona limited liability company No. CV 13-02021-PHX-DGC 10 Plaintiff, 11 12 vs. 13 ORDER Salvatore Carpanzano, a/k/a John Salvatore Carpanzano, et al., 14 15 16 Defendants. 17 Plaintiff Liberty West Regional Center, LLC has filed a motion pursuant to 18 Rule 55(b) of the Federal Rules of Civil Procedure requesting the entry of default 19 judgment against Defendants Salvatore Carpanzano, Marisa Belcastro Carpanzano, 20 (collectively the “Carpanzanos”), and Samba Financial Group Escrow & Consulting 21 Services U.S.A., LLC (“Samba”). The Court will deny the motion without prejudice. 22 Default was entered as to the Carpanzanos and Samba on November 5, 2013. 23 Doc. 21. Once a party’s default has been entered, the district court has discretion to grant 24 default judgment against that party. See Fed. R. Civ. P. 55(b)(2); Aldabe v. Aldabe, 616 25 F.2d 1089, 1092 (9th Cir. 1980). Factors the court must consider in deciding whether to 26 grant default judgment include (1) the possibility of prejudice to the plaintiff, (2) the 27 merits of the claim, (3) the sufficiency of the complaint, (4) the amount of money at 28 stake, (5) the possibility of a dispute concerning material facts, (6) whether default was 1 due to excusable neglect, and (7) the strong policy favoring a decision on the merits. See 2 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In applying these factors, “the 3 factual allegations of the complaint, except those relating to the amount of damages, will 4 be taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see 5 Fed. R. Civ. P. 8(d) (“Averments in a pleading to which a responsive pleading is 6 required, other than those as to the amount of damage, are admitted when not denied in 7 the responsive pleading.”). “However, necessary facts not contained in the pleadings, 8 and claims which are legally insufficient, are not established by default.” Cripps v. Life 9 Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) 10 Plaintiff’s motion does not address the Eitel factors. See Doc. 28. It is therefore 11 unclear to the Court whether these factors favor the entry of default judgment. The Court 12 will accordingly deny the motion for default judgment without prejudice. Plaintiff shall 13 have until January 31, 2014 to refile the motion. The new motion shall fully address 14 each Eitel factor and also shall include an explanation and evidence sufficient to support 15 any calculation of requested damages. See Geddes, 559 F.2d at 560. 16 17 18 IT IS ORDERED that Plaintiff’s motion for default judgment (Doc. 28) is denied without prejudice. Plaintiff shall have until January 31, 2014 to refile the motion. Dated this 14th day of January, 2014. 19 20 21 22 23 24 25 26 27 28 -2-

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