American River Ag., Inc. v. Global Natural, LLC et al

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/13/2018 DENYING 9 Motion for Default Judgment without prejudice. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMERICAN RIVER AG., INC.,

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No. 2:18-cv-00377-TLN-CKD

Plaintiff,
v.

ORDER

GLOBAL NATURAL, LLC, et al.,
Defendants.

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Presently pending before the court is plaintiff’s motion for default judgment by the Clerk

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of Court pursuant to Federal Rule of Civil Procedure 55(b)(1). (ECF No. 9.) Plaintiff initiated

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this action against defendants on February 16, 2018, pursuant to 28 U.S.C. § 1332 diversity of

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citizenship jurisdiction, raising claims of breach of contract, breach of implied warranty of

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merchantability, breach of express warranty, negligent misrepresentation, and goods sold and

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delivered. (See generally, ECF No. 1.)

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Defendants failed to answer the complaint, or otherwise appear, after being served. (See

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ECF Nos. 4, 5.) Plaintiff subsequently requested, and was granted, a clerk’s entry of default.

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(ECF Nos. 6-7.) On October 24, 2018, plaintiff filed the pending motion for entry of default,

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asserting that its claims are for a sum certain of $1,411,461.92. (ECF No. 9 at 2.)

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Federal Rule of Civil Procedure 55(b)(1) provides that “[i]f 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
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request, with an affidavit showing the amount due—must enter judgment for that amount and

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costs against a defendant who has been defaulted for not appearing and who is neither a minor nor

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an incompetent person.” Fed. R. Civ. P. 55. The Ninth Circuit has observed that
[u]nfortunately, “the cases discussing the sum certain requirement of
Rule 55 are few and far between and rather exiguous in their
reasoning.” KPS & Assocs., Inc. v. Designs By FMC, Inc., 318 F.3d
1, 19 n. 7 (1st Cir.2003) (quoting Collex, Inc. v. Walsh, 74 F.R.D.
443, 450 (E.D.Pa.1977)); see also Byrd v. Keene Corp., 104 F.R.D.
10, 12 (E.D.Pa.1984) (stating that “[r]elatively few cases have raised
the question of what qualifies as a ‘sum certain’ for the purposes of
Rule 55(b)”). Noting this paucity of federal case law, the First
Circuit in KPS & Assocs. looked to state courts whose rules of
procedure mirror the Federal Rules. This led the court to conclude
that a claim is not a sum certain unless no doubt remains as to the
amount to which a plaintiff is entitled as a result of the defendant’s
default. Id. at 19. The First Circuit ultimately concluded that the
particular claim before it was not a sum certain because the complaint
and supporting affidavits, which were internally inconsistent, did not
set forth a claim capable of simple mathematical computation. Id. at
20.

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Franchise Holding II, LLC. v. Huntington Restaurants Grp., Inc., 375 F.3d 922, 928-29 (9th Cir.

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2004).

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Based upon the nature of plaintiff’s claims—which include negligent misrepresentation

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and breaches of warranties—and plaintiff’s supporting affidavit (ECF No. 10), it cannot be

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determined that no doubt remains as to the amount to which plaintiff is entitled in relation to

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defendants’ default. Thus, for a determination regarding default judgment in this matter, plaintiff

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needs to bring a motion pursuant to Federal Rule of Civil Procedure 55(b)(2) in accordance with

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the local rules of court.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for default judgment

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pursuant to Federal Rule of Civil Procedure 55(b)(1) (ECF No. 9) is DENIED WITHOUT

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PREJUDICE subject to renewal pursuant to Rule 55(b)(2).

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Dated: November 13, 2018

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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