Fox et al v. Anderson et al

Filing 84

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/12/2013 ORDERING 68 that the 2/20/2013 hearing on plainitffs' motion for default judgment is VACATED; RECOMMENDING 68 that plaintiff's motion for default judgment be denied without prejudice; Referred to Judge John A. Mendez; Objections due within 14 days after being served with these F & R's. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BARRY FOX, et al.,
Plaintiffs,

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vs.

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No. 2:11-cv-0419 JAM AC

JASMINE DELGADO,

ORDER AND

Defendant.

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FINDINGS & RECOMMENDATIONS
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Pending before the court is plaintiffs’ September 28, 2012 motion for default

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judgment as to defendant Jasmine Delgado. This matter is before the court pursuant to Local

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Rule 302(c)(19). The court has determined that the matter shall be submitted upon the record

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and briefs on file and accordingly, the date for hearing of this matter shall be vacated. Local

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Rule 230. Upon review of the motion, THE COURT FINDS AS FOLLOWS:
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

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A.

Introduction

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On February 14, 2011, plaintiffs filed this case and are proceeding on a first

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amended complaint (“FAC”) filed May 2, 2011. Plaintiffs name as defendants the City of

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Rancho Cordova (“City”), the County of Sacramento (“County”), three deputy sheriffs employed

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by the County (“the police defendants”), four employees of Child Protective Services (“the CPS
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defendants”), and Jasmine Delgado. Plaintiffs Barry and Narcisa (“Nancy”) Fox (“the parent

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plaintiffs”), appearing individually and as parents and natural guardians and guardians ad litem

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of their four minor sons (A.F., D.F., S.F., and M.F.), accuse the City, the County, the police

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defendants, and the CPS defendants of failing to conduct an adequate investigation into the cause

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of blisters found on the feet of their youngest son, M.F., while in the care of his babysitter,

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Delgado. Having failed to properly investigate the matter, plaintiffs claim that these defendants

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baselessly accused Barry and Nancy Fox of causing M.F.’s injury and, accordingly, removed all

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four children from the care and custody of the parent plaintiffs for nearly two months, in

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violation of state and federal law. Plaintiffs brings suit against Delgado for negligence.

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On January 22, 2013, plaintiffs filed a notice of dismissal by stipulation as to the

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City, the County, the police defendants, and the CPS defendants. ECF No. 83. Only defendant

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Delgado, who has one claim asserted against her, remains in this action.

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B.

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Allegations as to Delgado
In the FAC, plaintiffs claim that, on the morning of January 29, 2010, Nancy Fox

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dropped off 2.5 year old M.F., still in his “footy” pajamas and without injury, at Delgado’s

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second-floor apartment for babysitting services. FAC ¶¶ 26-30. In the early afternoon on

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January 29, 2010, Nancy received a telephone call from Delgado telling her that something was

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wrong with M.F.’s feet and that Nancy should come pick him up as soon as possible at

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Delgado’s mother’s apartment, which was a first-floor apartment in the same complex as

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Delgado’s second-floor apartment. Id. ¶ 31. When Nancy arrived, she saw that M.F. had his

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pants on but no shoes or socks. Id. ¶ 32. When she examined his feet, she noticed that they were

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pink to red in color and appeared to have large water blisters and detached skin on their tops. Id.

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Delgado told Nancy “M.F. was fine before I put his shoes on him,” and suggested that M.F. must

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be suffering from a bacterial infection caused by his shoes. Id. ¶ 34. Nancy and Jasmine then

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took M.F. to the hospital, where the attending physician diagnosed the condition of M.F.’s feet

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as second degree immersion burns and directed Nancy to take M.F. to the Shriner’s Burn Center
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Hospital in Sacramento (“Shriner’s”). Id. ¶ 39. At Shriner’s, M.F. was treated for immersion

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burns. Id. ¶ 46. While there, M.F. was interviewed by one of the officer defendants and stated

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that “grandma” had hurt him and that “grandma” lived near or “under” Delgado. Id. ¶ 121.

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In their Eighth Claim for Relief in the FAC, plaintiffs assert that, as a result of

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Delgado’s negligence, M.F. has been damaged in the “form of extreme pain and suffering,

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permanent injury and disfigurement to his feet and the donor skin graft site on his back and

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psychic injury in a degree to be ascertained and determined from the evidence received at trial

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and in the need for future medical care.” FAC ¶ 151. They seek damages not less than

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$200,000.

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C.

Delgado’s Failure to Appear

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On March 1, 2011, Delgado was personally served with the summons and

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complaint. ECF No. 10. On May 2, 2011, Delgado was served by mail with the first amended

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complaint. ECF No. 14, Ex. 1. While Delgado did appear to give a deposition, see Pls.’ Mot. for

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Def. J. at 2, she has not filed or served any pleading.

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On September 18, 2012, plaintiffs filed a Request for Entry of Default against

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Delgado ECF No. 66. On September 20, 2012, the Clerk of the Court entered default against

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Delgado.

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Now pending is plaintiffs’ September 28, 2012 motion for default judgment on

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plaintiffs’ negligence claim in the amount of $200,000. Plaintiffs served by mail a copy of this

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motion on Delgado. See Notice of Pls.’ Mot. for Def. J. at 3.

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DISCUSSION

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Plaintiffs’ motion for default judgment is lacking, to say the least. It fails to set

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forth any legal standards – indeed, it fails to cite to any case law and cites only to “Rule 55” of

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the Federal Rules of Civil Procedure and to Wright, Miller & Kane’s Federal Practice and

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Procedure. Additionally, the reference to “Rule 55” does not specify whether relief is sought

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pursuant to Rule 55(b)(1) or (b)(2). Furthermore, consistent with the failure to cite any case law,
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the motion fails to set out, let alone apply, the factors that the court must consider before entry of

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default judgment. Finally, the motion provides no basis (affidavits or otherwise) for the

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requested $200,000 damages award.

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A.

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Default Judgment Pursuant to Rule 55(b)(1)
Federal Rule of Civil Procedure 55 governs the entry of default by the clerk and

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the subsequent entry of default judgment by either the clerk or the district court. In relevant part,

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Rule 55 provides:

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(a) Entering a Default. When a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend,
and that failure is shown by affidavit or otherwise, the clerk must
enter the party's default.

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(b) Entering a Default Judgment.
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(1) By the Clerk. If the plaintiff’s claim is for a sum
certain or a sum that can be made certain by computation,
the clerk—on the plaintiff’s request, with an affidavit
showing the amount due—must enter judgment for that
amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor
an incompetent person.

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(2) By the Court. In all other cases, the party must apply to
the court for a default judgment . . . .
Fed. R. Civ. P. 55(a)-(b).
To the extent plaintiffs move for default judgment under Rule 55(b)(1) because

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the damages they seek are a “sum certain,” the motion should be denied. That is, the Clerk

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cannot enter default judgment against Delgado because the damages sought are not a sum

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certain. A sum is certain when, for example, in Franchise Holding II, LLC v. Huntington

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Restaurants, 375 F.3d 922, 928 (9th Cir. 2004), loan documents provided precise calculations to

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fix the amount due after a borrower failed to make loan payments and then ignored the plaintiff’s

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suit. In contrast, plaintiffs claim $200,000 in non-economic damages with no explanation as to

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how they arrived at that number. Because the sum is not certain, default judgment pursuant to

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Rule 55(b)(1) is inappropriate.
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B.

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Default Judgment Pursuant to Rule 55(b)(2)
Next, insofar as plaintiffs seek default judgment pursuant to Rule 55(b)(2), this

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motion should also be denied, albeit without prejudice. This is because plaintiffs have failed to

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demonstrate that they are entitled to default judgment. The substance of plaintiffs’ motion is

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approximately two pages page, and does not present any legal arguments concerning the relevant

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factors a court considers in granting default judgment. See Aldabe v. Aldabe, 616 F.2d 1089,

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1092 (9th Cir. 1980). Moreover, plaintiffs present no evidence in support of their damages

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request. “When seeking a default judgment, a plaintiff should provide the Court with points and

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authorities containing citations to authority showing that the plaintiff’s claim or claims include

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allegations of all the necessary elements required for entitlement to relief. It is the party’s

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burden to demonstrate to the Court that under the pertinent law, the plaintiff’s claims, as alleged,

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are legally sufficient.” S.A. ex rel. L.A.. v. Exeter Union School Dist., 2009 WL 1953462, *8

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(E.D. Cal. 2009). Here, plaintiffs’ motion fails to meet this burden.

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Accordingly, IT IS HEREBY ORDERED that the February 20, 2013 hearing on
plaintiffs’ motion for default judgment is vacated; and
IT IS HEREBY RECOMMENDED that plaintiffs’ motion for default judgment

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be denied without prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir.

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1991).

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DATED: February 12, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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