Accor Franchising North America, LLC v. Elohim Ent. Inc. et al

Filing 39

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/8/13 RECOMMENDING that 33 and 36 Motions for Default Judgment against defendant Gondosinaryo Listyo, jointly and severally with defendant Elohim Ent., Inc., be granted in the amount of $114,805.63 and that this action be closed. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days after being served with these findings and recommendations. (Meuleman, 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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ACCOR FRANCHISING NORTH
AMERICA, LLC,

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Plaintiff,

No. 2:12-cv-0762 GEB CKD

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vs.
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ELOHIM ENT. INC., et al.,
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Defendants.
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FINDINGS & RECOMMENDATIONS
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Presently before the court is plaintiff’s motion for default judgment against

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defendant Gondosinaryo Listyo. This matter is submitted without oral argument. The

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undersigned has fully considered the briefs and record in this case and, for the reasons stated

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below, will recommend that plaintiff’s motion for default judgment be granted.

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In this action, plaintiff seeks damages for breach of contract-franchise agreement,

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breach of contract-guaranty, audit demand/accounting and unjust enrichment. Plaintiff’s claims

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arise out of a franchise agreement for operation of a Motel 6 at 3240 Mather Field Road in

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Rancho Cordova, California. The record reflects that defendant Gondosinaryo Listyo was

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properly served by publication pursuant to the order filed July 10, 2012 allowing such service.

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Default against defendant Gondosinaryo Listyo was entered on March 27, 2013. Plaintiff seeks

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an entry of default judgment in the total amount of $114,805.63, comprising $20,060.78 for past
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due franchise fees, $75,000.00 for liquidated damages, prejudgment interest of $7,129.55 and

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$12,615.30 for attorneys fees and costs. Default judgment against co-defendant Elohim Ent. Inc.

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was entered in this amount on February 21, 2013.

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Entry of default effects an admission of all well-pleaded allegations of the

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complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir.

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1977). The court finds the well pleaded allegations of the complaint state a claim for which

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relief can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). The

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application for default judgment and the exhibits and affidavits attached thereto also support the

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finding that plaintiff is entitled to the relief in the form of monetary damages requested in the

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prayer for default judgment, which does not differ in kind from the relief requested in the

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complaint. Henry v. Sneiders, 490 F.2d 315, 317 (9th Cir.), cert. denied, 419 U.S. 832 (1974).

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The amount sought is supported by the affidavits submitted in support of the motion for default

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judgment. Savas Declaration, ¶ 19 (personal guaranty of defendant Listyo); Complaint, Exhibit

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A, Franchise Agreement, ¶ 13.6 (provision allowing for liquidated damages in the amount of

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$75,000.00). Plaintiff also requests prejudgment interest at the rate of 6%, calculated under

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Texas law. Complaint, Exhibit A, Franchise Agreement, ¶ 4.7. The franchise agreement

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provides for the application of Texas law; prejudgment interest should therefore be awarded

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pursuant to the terms of the contract. Plaintiff is also entitled to attorneys fees under the

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franchise agreement at issue here and the amount claimed is reasonable. Ganzberger

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Declaration; Complaint, Exhibit A, Franchise Agreement, ¶ 22.8. There are no policy

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considerations which preclude the entry of default judgment of the type requested. See Eitel v.

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McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986) (factors that may be considered by the court

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are possibility of prejudice to the plaintiff, merits of plaintiff’s substantive claim, sufficiency of

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the complaint, sum of money at stake in the action; possibility of a dispute concerning material

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facts; whether the default was due to excusable neglect, and strong policy underlying the Federal

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Rules of Civil Procedure favoring decisions on the merits).
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion for default judgment (dkt. nos. 33, 36) against defendant

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Gondosinaryo Listyo, jointly and severally with defendant Elohim Ent. Inc., be granted in the

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amount of $114,805.63; and

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2. This action be closed.

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These findings and recommendations are submitted to the United States District

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

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

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

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may waive the right to appeal

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the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 8, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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accor0762.def2

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