Hartung v. J.D. Byrider, Inc et al

Filing 63

ORDER Re: Damages Hearing and Attorney's Fees signed by Magistrate Judge Gary S. Austin on 1/6/2009. Damages Hearing set for 2/6/2009 at 09:30 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. (Esteves, C)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Jessica Hartung ("Plaintiff") filed a Motion for Default Judgment against Defendant John Anderson, aka John Edens, on November 14, 2008. No opposition to the motion was filed. This court took the matter under submission. However, upon further review, the court has determined that a damages hearing is necessary as Plaintiff has requested a total judgment amount of $64,590 including $50,000 in emotional damages; $2,000 in statutory damages; $12,240 in attorney's fees; and $350 in costs. Although the factual allegations of a complaint relating to liability are taken as true, allegations related to the amount of damages suffered are ordinarily not. Dundee Cement Company 1 ) ) ) Plaintiff, ) ) ) vs. ) ) ) J.D. BYRIDER, INC., JD BYRIDER ) OF CHANDLER; CARNOW ) ACCEPTANCE COMPANY; JOHN ) ANDERSON; and T-MOBILE USA ) INC and DOES 1 through 10 inclusive, ) ) ) Defendants. ) ____________________________________) JESSICA HARTUNG, 1:08-cv-00960 AWI GSA ORDER RE: DAMAGES HEARING AND ATTORNEY'S FEES IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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v. Howard Pipe & Concrete Products, 722 F. 2d 1319, 1323 (9th Cir. 1983). Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that the court may conduct a hearing to determine the amount of damages. Fed. R. Civ. Proc. 55(b)(2). Moreover, a judgment by default may not be entered without a hearing on damages unless the amount claimed is liquidated or capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits. Dundee Cement Co. v. Concrete Products, 722 F. 2d at 1323. Although Plaintiff has provided the court with an affidavit, she has requested a significant of amount of money based on emotional damages. The amount of emotional damages is difficult to quantify based on the existing affidavit. As such, the court will hold a damages hearing on February 6, 2009 at 9:30 in Courtroom 10. Counsel may appear telephonically for this hearing, however, Plaintiff shall personally appear. All arrangements to appear telephonically shall be made with Carrie Esteves, Courtroom Deputy to Judge Austin, at 559-499-5962. Additionally, the request for attorney's fees in the amount of $12,240 against Defendant Anderson includes attorney's fees that were incurred in the course of litigation related to other defendants in this case. See, Exhibit B attached to Jeremy S. Golden's Declaration dated November 11, 2008. (Doc. 58-5). Within 15 days of this order, Plaintiff's attorney shall provide the court with the legal authority to support the contention that Defendant Anderson is liable for attorney's fees resulting from the prosecution of the other defendants in this case. In the alternative, Plaintiff's counsel shall submit a revised declaration and supporting documentation that contains attorney's fees relating to fees incurred in the litigation against Defendant John Anderson only.

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IT IS SO ORDERED. Dated: 6i0kij

January 6, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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