Joe Hand Promotions, Inc. v. Alvarado et al

Filing 38

ORDER ADOPTING 36 FINDINGS AND RECOMMENDATIONS IN FULL and ORDER DENYING 32 David and Linda Alvarado's Motion for Default Judgment, signed by District Judge Lawrence J. O'Neill on 5/9/2011. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOE HAND PROMOTIONS, INC.,

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Plaintiff,
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v.
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DAVID ALVARADO, LINDA ALVARADO, )
ADOLFO ORDAZ JR., SUSANA GARCIA
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and ANDRES GARCIA, INDIVIDUALLY and )
d/b/a FRANKIES BAR a/k/a PATRON’S
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SPORTS BAR,
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Defendants.
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_______________________________________ )

Case No.: 1:10-cv-00907 LJO JLT
ORDER ADOPTING THE FINDINGS AND
RECOMMENDATIONS TO DENY THE
MOTION FOR DEFAULT JUDGMENT BY
DAVID ALVARADO AND LINDA
ALVARADO
(Doc. 36)

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David Alvarado and Linda Alvarado, individually and doing business as Frankie’s Bar (“the

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Alvarados”) seek the entry of default judgment against Adolofo Ordaz, Jr., Susana Garcia, and

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Andres Garcia (“the Ordaz/Garcia Group”). (Doc. 32). The Alvarados filed claims to which the

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Ordaz/Garcia Group failed to respond. On April 21, 2011, the Magistrate Judge recommended to

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deny the Alvarados default judgment motion. (Doc. 36).

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Granting or denying a motion for default judgment is within the discretion of the Court.

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Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In considering the factors promulgated by

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the Ninth Circuit Court of Appeals in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986), the Magistrate

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Judge found that the merits of the Alvarados’ claims and the sufficiency of the pleadings, when

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examined together, weigh against granting default judgment and that the Alvarados’ claims for full
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indemnity and partial indemnity were premature and inapplicable to violations of 47 U.S.C. §§ 533,

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605. (Doc. 36 at 5). In addition, the Alvarados failed to plead with sufficient specificity their

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allegations of fraud and negligent misrepresentation to meet the heightened standards of F.R.Civ.P.

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9(b). (Doc. 36 at 5-6). Further, the Magistrate Judge determined the Alvarados failed to establish

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claims of negligence, breach of contract, breach of the implied covenant of good faith and fair

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dealing, and a violation of the Cal. Bus. & Prof. Code § 17200. In addition, the Magistrate Judge

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determined it was in the interest of justice to not enter default judgment against the Ordaz/Garcia

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Group while their liability to Plaintiff remains undetermined, and there exists the possibility of

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dispute concerning material facts.

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Although the Alvarados were granted 14 days from April 21, 2011, or until May 5, 2011, to
file objections to the Magistrate’s Amended Findings and Recommendations, they did not.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley

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United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of

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the case. Having carefully reviewed the entire file, the Court finds that the findings and

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recommendation are supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED:

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The Amended Findings and Recommendations filed April 21, 2011, are ADOPTED
IN FULL; and

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2.

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IT IS SO ORDERED.

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Dated:
66h44d

The Alvarados’ motion for default judgment (Doc. 32) is DENIED.

May 9, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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