Sanchez v. Garcia
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sean C. Riordan on 1/29/2025 RECOMMENDING 14 Motion for Default Judgment be granted in the amounts of $46,824 in damages and $3,776 in attorney's fees and costs. Referred to Judge Dena M. Coggins. Objections due 14 days after the filing of these findings and recommendations. (Deputy Clerk RRB)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAVIER OLIVER SANCHEZ,
No. 2:23-cv-01192-DC-SCR
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Plaintiff,
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v.
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FINDINGS AND RECOMMENDATIONS
SEBASTIAN GARCIA,
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Defendants.
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Plaintiff Javier Oliver Sanchez’s motion for a default judgment in the amount of
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$72,144.72, plus $3,776 in attorney’s fees (ECF No. 14 at 4),1 is before the undersigned pursuant
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to Local Rule 302(c)(19). Magistrate Judge Barnes heard and submitted the motion on April 11,
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2024. ECF No. 21. Defendant Sebastian Garcia did not appear at that hearing. This matter was
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reassigned to the undersigned on August 6, 2024 (ECF No. 22). For the reasons provided below,
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the undersigned recommends that Plaintiff’s motion be granted, but that default judgement be
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entered only as to a portion of the total damages that Plaintiff requests.
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Page number citations such as this are to the page number reflected on the court’s CM/ECF
system and not to the page numbers assigned by the parties.
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BACKGROUND
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Plaintiff initiated this matter by filing a Complaint on June 21, 2023. ECF No. 1. The
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Complaint alleges that between January and July 2022, Plaintiff was employed by Defendant, the
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sole owner of a business in Lodi, California. ECF No. 1 at ?? 4-6, 11-12, 14. Plaintiff worked an
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average of 90 hours per week. Id. at ? 16. Plaintiff’s salary was $850 per week, or an average of
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$9.44 per hour, paid biweekly. Id. at ?? 17, 19. The Complaint concludes that Defendant did not
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pay Plaintiff the minimum wage for hours worked, did not pay Plaintiff 1.5 times the regular pay
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rate for hours worked in excess of 40 hours per week, and did not pay amounts owed to Plaintiff
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within 72 hours of Plaintiff’s termination. Id. at ?? 19-22, 35.
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The Complaint further alleges that Defendant did not keep proper time records for the
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hours Plaintiff worked, as required by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
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(“FLSA”). Id. at ? 23. It also alleges that Defendant did not authorize paid off-duty meal or rest
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breaks as required under Wage Order No. 4-2001 §12 (issued by the California Department of
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Industrial Relations), and owes Plaintiff one hour of regular pay per violation. Id. at ?? 43, 46.
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Finally, the Complaint alleges that Defendant did not provide itemized wage statements reflecting
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the wages Plaintiff earned, hours he worked, and applicable hourly rates. Id. at ?? 48-49.
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Based on these allegations, the Complaint asserts claims under (1) the FLSA, (2)
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California Labor Code §1194 and Industrial Welfare Commission (“IWC”) Wage Order 5, (3)
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California Labor Code § 203 et seq., (4) California Labor Code §§ 226.2 and 226.7 and Wage
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Order No. 4-2001 § 12, and (5) California Labor Code §§ 226(a), 226(e), and 226.2. Id. at 3-4, 6,
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8-9.
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Proof of substitute service of process on Mayra Ortega, who confirmed that Defendant
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lived at the address on file, was filed on October 4, 2023. ECF No. 10. Defendant did not answer
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the Complaint or otherwise appear in the case. On November 29, 2023, Plaintiff filed a request
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for entry of default. ECF No. 11. The Clerk entered default on December 1, 2023. ECF No. 12.
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On December 19, 2023, Plaintiff moved for default judgment and served the motion on
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Defendant by U.S. Mail. ECF No. 14 at 1-2. On January 29, 2024, Magistrate Judge Barnes
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ordered Plaintiff to file supplemental briefing addressing the factors outlined in Eitel v. McCool.
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ECF No. 17 at 1-2 (citing 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citing 6 Moore’s Federal
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Practice ¶ 55-05[2], at 55-24 to 55-26)). Plaintiff filed the supplemental brief on February 13,
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2024. ECF No. 18. Magistrate Judge Barnes heard the motion on April 11, 2024. ECF No. 21.
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LEGAL STANDARDS
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Federal Rule of Civil Procedure 55(b)(2) governs applications for default judgment. Upon
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entry of default, the complaint’s factual allegations regarding liability are taken as true, while
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allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard
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Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United States, 323
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U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also DirectTV v.
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Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-
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18 (9th Cir. 1987).
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Where damages are liquidated, i.e., capable of ascertainment from definite figures
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contained in documentary evidence or in detailed affidavits, judgment by default may be entered
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without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages,
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however, require “proving up” at an evidentiary hearing or through other means. Dundee, 722
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F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).
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Granting or denying default judgment is within the court’s sound discretion. Draper v.
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Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir.
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1980). The court considers a variety of factors in exercising this discretion. Eitel, 782 F.2d at
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1471-72. Among them are:
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(1) the possibility of prejudice to the plaintiff, (2) the merits of
plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4)
the sum of money at stake in the action; (5) the possibility of a dispute
concerning material facts; (6) whether the default was due to
excusable neglect, and (7) the strong policy underlying the Federal
Rules of Civil Procedure favoring decisions on the merits.
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Eitel, 782 F.2d at 1471-72 (citing 6 Moore’s Federal Practice ¶ 55-05[2], at 55-24 to 55-26).
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ANALYSIS
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For the following reasons, the Eitel factors favor entry of default judgment.
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a. Possibility of Prejudice to the Plaintiff
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The first Eitel factor contemplates the possibility of prejudice to the plaintiff if default
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judgment is not entered. Eitel, 782 F.2d at 1471. Prejudice can be established where failure to
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enter a default judgment would leave plaintiff without a proper remedy. PepsiCo, Inc. v. Cal.
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Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal 2002). Here, Plaintiff has no alternative for
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recovering damages suffered from Defendants’ failure to pay wages owed, maintain proper time
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records or wage statements, and authorize paid meal breaks. ECF No. 18 at 3-4. Accordingly,
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the first factor weighs in favor of default judgment.
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b. Merits of Plaintiff’s Substantive Claims and Sufficiency of the Complaint
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The second and third Eitel factors jointly examine whether the plaintiff has pleaded facts
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sufficient to establish and succeed upon its claims. Pepsico, Inc., 238 F.Supp.2d at 1175 (citing
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Kleopping v. Fireman’s Fund, 1996 WL 75314, at *2 (N.D. Cal. Feb. 14, 1996)). Plaintiff’s
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motion for default judgment seeks recovery on claims under (1) the FLSA, (2) California Labor
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Code § 1194 and Wage Order 5, (3) California Labor Code § 203 et seq., (4) California Labor
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Code §§ 226.2 and 226.7 and IWC Wage Order No. 4-2001 § 12, and (5) California Labor Code
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§§ 226(a), 226(e) and 226.2. ECF No. 18 at 4-5; see ECF No. 1 at 3-4, 6, 8-9.
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i. Minimum Wage and Overtime
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Between January 1, 2022 and January 1, 2023, the minimum wage in the State of
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California was $14.00 per hour for any employer with 25 or fewer employees, and $15.00 for any
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employer with 26 or more employees. IWC Order No. MW-2025. Both the FLSA and applicable
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IWC Orders require compensation for hours worked in excess of forty per week at an hourly rate
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at least one and one-half times a employee’s regular rate of pay. 29 U.S.C. §207(a)(1); IWC
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Wage Order No. 5-2001 § 3(A)(1). Under the California Labor Code, any employee who
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receives less than the applicable legal minimum wage or overtime compensation is entitled to
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recover the unpaid balance of such compensation, interest thereon, reasonable attorney’s fees, and
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costs of suit. Cal. Labor Code § 1194(a).
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Plaintiff submits an affidavit with a table calculating the unpaid wages Defendant owes,
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based both on the minimum wage and the number of overtime hours worked. ECF No. 14 at 9.
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Plaintiff asserts that he worked 90 hours a week for 23 weeks but was effectively paid only $9.44
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per hour. Id. at 6, 9. Based on a minimum wage of $15 per hour, Plaintiff calculates that he was
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underpaid ($15 - $9.44) x 90 = $500.40 per week for failure to pay minimum wage, plus $15 x
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0.5 x (90 - 40) = $375 per week for failure to pay an extra 50% overtime for 50 of the 90 hours.
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Id. at 9. By Plaintiff’s calculation, the underpaid wages for these 23 weeks therefore total
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$875.40 x 23 = $20,134.20. Id.
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The table then becomes somewhat confusing. The table shows that Plaintiff worked “0”
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hours per week for eight weeks in June and July 2022, though below the table Plaintiff indicates
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that he seeks to recover “unpaid wages” for those eight weeks. Id. at 9. The reasonable
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conclusion is that Plaintiff in fact worked 90 hours per week during those eight weeks—as
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Plaintiff attests to elsewhere, id. at 6—but that he was paid for “0” of those hours. For these
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weeks, Plaintiff asserts Defendant should have paid $9.44 x 40 = $377.60 per week for 40 hours
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of work, and $14.36 x 50 = $708 per week for 50 hours of overtime. Id. This totals $1,085.60
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per week, or $8,684.80 for those eight weeks. Id. When added to the $20,134.20 owed for the
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prior 23 weeks, Plaintiff asserts Defendant owes him $28,819. Id.
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As to the first 23 weeks, a minimum wage of $15 per hour only applies if Defendant had
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more than 25 employees during the period in question. See IWC Order No. MW-2025. If not,
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the minimum wage is only $14 per hour. Id. In neither the Complaint nor Plaintiff’s affidavit
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does he plead any facts regarding the size of Defendant’s workforce. See ECF Nos. 1, 14.
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Plaintiff has only pled sufficient facts to show that Defendant should have paid him at a $14
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minimum hourly rate.
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Based on this reduced minimum wage, Defendant owed ($14 - $9.44) x 90 = $410.40 per
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week for failure to pay minimum wage for 90 hours, plus $14 x 0.5 x (90 - 40) = $350 per week
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in 50% overtime for 50 of the 90 hours. The recoverable damages for these 23 weeks therefore
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total $760.40 x 23 = $17,489.20.
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As to the final eight weeks, Plaintiff does not explain why he calculates the amount owed using
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his actual hourly wage ($9.44), which fell well below the minimum wage. See ECF No. 1 at ? 20,
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ECF No. 14 at 6, 9. On Plaintiff’s showing that he did in fact work 90 hours per week through
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the end of July 2022, the Court will recalculate Plaintiff’s damages using the $14 minimum wage:
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$14 x 40 = $560 per week for 40 hours of work, and $21 x 50 = $1,050 per week for 50 hours of
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overtime. This totals $1,610 per week, or $12,880 for those eight weeks.
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Plaintiff has pled sufficient facts to find that Defendant failed to pay wages that comply
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with FLSA and IWC regulations. Damages under this claim, including attorney’s fees and costs,
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should total $17,489.20 + 12,880 = $30,369.20.
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However, an amount awarded in default judgment may not “differ in kind from, or exceed
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in amount, what is demanded in the pleadings.” Fed. R. Civ. P. 54(c). “The purpose of this rule
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is to ensure that a defendant is put on notice of the damages being sought against him so that he
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may make a calculated decision about whether it is in his best interest to answer.” Operating
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Engineers Health and Welfare Trust Fund for Northern California v. Pipe-Net, Inc., 2024 WL
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3390528, at *5 (N.D. Cal. June 14, 2024). Plaintiff sought $28,819 in damages for wage-and-
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hour violations. ECF No. 1 at 13; ECF No. 14 at 9. Despite being entitled under wage-and-hour
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laws to more than $30,000 based on the applicable minimum wage, $28,819 becomes the cap for
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this category of damages.
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ii. Waiting Time Penalties
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If an employer discharges an employee, the wages earned and unpaid at the time of
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discharge are due and payable immediately. Cal. Labor Code § 201(a). If an employee without a
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written contract for a definite period quits his or her employment, his or her wages shall become
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due and payable not later than 72 hours thereafter, unless the employee has given 72 hours
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previous notice of his or her intention to quit, in which case the employee is entitled to his or her
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wages at the time of quitting. Cal. Labor Code § 202(a).
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An employer who willfully fails to pay these amounts “without abatement of reduction” must also
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pay wages for that employee at the same rate until either the employer pays the amount owed or
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the employee commences an action for such amounts, but “the wages shall not continue for more
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than 30 days.” Cal. Labor Code § 203(a). Calculating the amount owed under this provision
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entails “the calculation of a daily wage rate, which can then be multiplied by the number of days
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of nonpayment, up to 30 days.” Mamika v. Barca, 68 Cal. App. 4th 487, 493 (Cal. App. 3rd Dist.
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1998).
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Plaintiff did not file this Complaint until June 2023, eleven months after the termination of
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his employment with Defendant. See ECF No. 1 at ? 34. Whether Defendant fired Plaintiff or
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Plaintiff resigned, more than 30 days elapsed between when unpaid wages became due and
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commencement of this action. For purposes of waiting time penalties, Plaintiff alleges he worked
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15 hours per day before termination.2 On that basis, he asserts that Defendant owes $9.44 x 8 =
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$75.52 per day for the first eight hours and $14.16 x 7 = $99.12 per day for overtime hours. ECF
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No. 1 at 14; ECF No. 14 at 10. Plaintiff alleges that Defendant therefore owes $174.64 per day,
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or $174.64 x 30 = $5,239, for the 30 days after Plaintiff’s wages became due. ECF No. 1 at ? 38;
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ECF No. 14 at 8.
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Plaintiff does not explain why he uses his base pay of $9.44 per hour for these calculations
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despite his assertion that this violated FLSA and state labor laws. See supra; ECF No. 1 at ?? 19-
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22; ECF No. 14 at 9-10. As explained above, however, the amount awarded in default judgment
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may not “differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R.
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Civ. P. 54(c). Because using the legal minimum wage to calculate damages would cause those
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damages to exceed the claimed amount, the Court may not do so.
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There is no dispute that Defendant would owe at least the amount pled in the Complaint
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for failure to pay wages owed upon Plaintiff’s discharge, if not more. Plaintiff has pled sufficient
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facts to establish and succeed upon his $5,239 claim for waiting time.
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iii. Rest Periods
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IWC Wage Order No. 4-2001 § 11(A) requires employers to authorize employees to take at least
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a 30-minute meal break for any workday exceeding 6 hours. The employee must be relieved of
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all duty during the meal period unless the nature of the work prevents it, in which case the
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employer and employee can agree to an “on-duty” meal period in writing if the agreement states
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A 15-hour workday is consistent with Plaintiff’s allegation that he worked 90 hours per week,
assuming he worked six days per week.
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the employee may revoke such agreement at any time. Id.
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Similarly, employers must authorize employees to take rest periods “at the rate of ten (10)
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minutes net rest time per four (4) hours or major fraction thereof.” IWC Wage Order No. 4-2001
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§ 12(A). Such rest time shall be counted as hours worked, for which the employer may not
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deduct employee wages. Id. The California Labor Code prohibits employers from making
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employees work during meal and rest periods so mandated. Cal. Labor Code § 226.7(b).
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Under the Wage Order, an employer who fails to provide an employee a meal period or
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rest period as required shall pay the employee one hour’s pay for every workday that “the meal
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period is not provided” and one for every workday that “the rest period is not provided.” IWC
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Wage Order No. 4-2001 §§ 11(B), 12(B).
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The Complaint alleges that Defendant regularly failed to authorize Plaintiff to take “paid
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off-duty meal or rest breaks” insofar as he required Plaintiff “to remain available for work at all
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times during his work day.” ECF No. 1 at ? 43. Plaintiff alleges that because he worked 15-hour
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days, he was entitled to both a meal period and two rest breaks. Id. at ? 45. Based on this
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assertion, Plaintiff submits a table showing that because he was denied three breaks a day for six
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days per week, or eighteen breaks per week, he is entitled to eighteen hours of additional pay per
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week worked. ECF No. 14 at 11. Based on his base hourly wage of $9.44, Plaintiff asserts he
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should receive 18 x $9.44 = $169.92 per week, totaling $5,267.52 for the 31 weeks he worked for
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Defendant. Id.
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Plaintiff misinterprets the Wage Order provisions governing mandatory rest periods and
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compensation owed for failure to authorize them. The penalty for failure to authorize rest time
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under the Wage Order is one hour’s pay “for each workday that the rest period is not provided[,]”
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not for each break so denied. See IWC Wage Order No. 4-2001 § 12(B) (emphasis added). For
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each workday, Plaintiff can only recover one hour’s pay for Defendant’s failure to authorize rest
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time.
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Between one hour for each workday without breaks and one hour for each workday without a
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meal period, Plaintiff’s recovery is limited to two hours per workday instead of three. As a result,
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Plaintiff is entitled to twelve hours of additional pay per six-day workweek, not eighteen hours of
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additional pay. See IWC Wage Order No. 4-2001 § 11(B). As discussed above, Plaintiff’s
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hourly wage should have been at least $14 to comply with minimum wage requirements at the
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time. See supra; IWC Order No. MW-2025. Plaintiff therefore is entitled to 12 x $14 = $168 per
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week, totaling $168 x 31 = $5,208 for the 31 weeks Plaintiff worked for Defendant.
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Although Plaintiff has pled sufficient facts to find that Defendant failed to authorize meal
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and rest periods as required under IWC regulations, his pleadings and evidence as to the amount
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owed only justify an award of $5,208.
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iv. Right to Itemized Statements
At the time of each payment of wages, an employer shall furnish to employee an accurate
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itemized statement showing, inter alia, gross wages earned, total hours the employee worked,
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deductions, net wages, and applicable hourly rates for that pay period with the number of hours
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worked at each rate. Cal. Labor Code § 226(a). An employee suffering injury for an employer’s
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failure to provide this statement is entitled to recover $50 for the first pay period in which the
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employer failed to provide the statement and $100 for each pay period thereafter, provided that
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the aggregate penalty does not exceed $4,000. Id. at § 226(e)(1).
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The Complaint alleges that Defendant never provided Plaintiff with itemized pay
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statements during Plaintiff’s employment. ECF No. 1 at ? 49. Plaintiff’s affidavit asserts that he
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is therefore owed $4,000 for these violations. ECF No. 14 at 7.
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The Complaint alleges that Plaintiff was paid biweekly, and the tables attached to
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Plaintiff’s affidavit show that he worked 31 weeks. ECF No. 1 at ? 17; ECF No. 14 at 9, 11.
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Because Plaintiff worked for 31/2 = 15.5 pay periods, he was entitled to 16 pay statements.
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Statutory damages include $50 for the first statement and $100 each for the remaining 15, for a
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total of $1,550.
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Although Plaintiff has pled sufficient facts to find that Defendant failed to issue itemized
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pay statements, the pled facts only entitle Plaintiff to $1,550 in damages for this cause of action.
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v. Liquidated Damages
Plaintiff’s Complaint seeks liquidated damages of $20,134.20, “an amount equal to
overtime wages unlawfully unpaid.” ECF No. 1 at 4, 11. Plaintiff does not cite a statutory or
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other legal basis for liquidated damages and his default judgment briefing does not explain a
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basis for liquidated damages.3 However, because Plaintiff mentions liquidated damages under
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his FLSA cause of action and only with reference to overtime wages, id. at 4, the Court evaluates
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the availability of liquidated damages under the FLSA only and only for unpaid overtime, and
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not under the California Labor Code.
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Under the FLSA, “[a]ny employer who violates the provisions of section 206 or section
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207 of this title shall be liable to the employee or employees affected in the amount of their
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unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an
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additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). The FLSA’s “liquidated
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damages are mandatory unless the employer establishes both subjective and objective good faith
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in its violation.” Cruz v. Quang, 2015 WL 348869, at *6 (N.D. Cal. Jan. 23, 2015).
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“Defendant[] ha[s] failed to appear in this action and ha[s] thus failed to present any evidence
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establishing their good faith intention to abide by the FLSA.” Gonzalez v. Restaurant, 2015 WL
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4481978, at *5 (N.D. Cal. July 22, 2015).
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“Where a plaintiff sues for unpaid overtime under both the FLSA and the California
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Labor Code, FLSA liquidated damages are calculated based on the FLSA regular rate of pay
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even if the plaintiff’s damages for the actual amount of unpaid overtime is calculated based on
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the California Labor Code regular rate of pay.” Sillah v. Command Int'l Sec. Servs., 154 F. Supp.
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3d 891, 913 (N.D. Cal. 2015). In 2022, the federal minimum wage was $7.25 per hour, or
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$10.88 per overtime hour. As explained above, Plaintiff was paid only $9.44 per hour for all
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overtime hours worked for the first 23 weeks of his employment for Defendant. Using the FLSA
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rate, Plaintiff is entitled to $10.88 - $9.44 = $1.44 per overtime hour for those 23 weeks, which
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amounts to $1.44 x 50 hours x 23 weeks = $1,656. For the last 8 weeks of his employment,
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Plaintiff was not paid at all for his overtime hours, meaning that he is entitled to $10.88 x 50
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hours x 8 weeks = $4,352. The total amount of appropriate liquidated damages is $6,008.
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Plaintiff’s default judgment briefing also confusingly requests $28,819 in liquidated damages,
without explaining why this figure is higher than the figure in his Complaint.
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vi. Attorney’s Fees and Costs
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Counsel for Plaintiff also asserts in an affidavit that Plaintiff has incurred $636 in filing
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and service costs, plus $3,140 in attorney’s fees for 7.85 billable hours at $400 per hour. ECF
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No. 14 at 12-13. Nothing suggests that these fees and costs are unreasonable.
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vii. Summary of Analysis Concerning Damages, Fees, and Costs
For the reasons explained herein, under Eitel factors two and three, Plaintiff is entitled to
$46,824 in damages and $3,776 in attorney’s fees and costs.
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c. Sum of Money at Stake
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In weighing the fourth Eitel factor, “the court must consider the amount of money at stake
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in relation to the seriousness of the defendant’s conduct.” PepsiCo, Inc., 238 F.Supp.2d at 1176-
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77. This factor weighs against default judgment when a large sum of money is at stake. Eitel,
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782 F.2d. at 1472.
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Here, Plaintiff seeks $28,819 in damages for unpaid wages, $28,819 in liquidated
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damages, $5,239.20 in rest and meal violations, $5,239.20 in waiting time penalties, and $4,000
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in statutory damages for a total of $72,144.72. ECF No. 14 at 7. Plaintiff also seeks $3,776 in
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attorney’s fees and costs, for a total of $75,920.72. ECF No. 14 at 12-14; ECF No. 18 at 6.
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Plaintiff argues that because this amount is “reasonably proportionate to the harm caused by
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Defendant’s actions, properly documented, and contractually justified[,]” default judgment is
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appropriate. ECF No. 18 at 5-6.
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However, as explained above, Plaintiff has only proven entitlement to $46,824 in damages
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and $3,776 in attorney’s fees and costs. This reduced amount strengthens Plaintiff’s argument
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that any default judgment in this action would be relatively modest. This factor does not weigh
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against default judgment.
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d. Possibility of Disputed Material Facts
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The fifth Eitel factor examines whether a dispute regarding material facts exists. Eitel,
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782 F.2d. at 1471-72. Here, Defendant failed to appear, leading to an entry of default. Given that
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circumstance, there is no possibility for a dispute of material fact. See Elektra Entm’t Group, Inc.
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v. Crawford, 226 F.R.D. 388, 393 (C.D. Cal. 2005) (“Because all allegations in a well-pleaded
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complaint are taken as true after the court clerk enters default judgment, there is no likelihood that
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any genuine issue of material fact exists”). Indeed, it appears this factor generally weighs against
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entry of default judgment only when a defaulting party contests a motion for default judgment
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and meaningfully disputes material facts. See, e.g., NewGen, LLC v. Safe Cig, LLC, 840 F.3d
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606, 610, 616 (9th Cir. 2016) (finding that defaulting party which did not answer because it
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believed service was defective but then contested a motion for default judgment had not raised
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possibility of disputed material facts where it “stat[ed] only general objections to the existence of
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a contract, the extent of the relationship between the parties, and the alleged services performed”).
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This factor weighs in favor of a default judgment.
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e. Whether the Default Was Due to Excusable Neglect
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The sixth Eitel factor considers whether Defendants’ failure to answer is due to excusable
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neglect. Eitel, 782 F.2d at 1471-72. This factor considers due process, ensuring defendants are
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given reasonable notice of the action. See Mullane v. Central Hanover Bank & Trust Co., 339
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U.S. 306, 314 (1950).
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Here, Defendant was properly served with a copy of the Complaint by substitute service.
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ECF No. 10. Additionally, the request for the Clerk to enter default (ECF No. 11) was served on
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Defendant by mailing it to the same address as substitute service. Both the motion for default
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judgment and the supplemental brief in support thereof were served on Defendant by mailing
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copies to the same address, despite the fact that “[n]o service is required on a party who is in
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default for failing to appear.” Fed. R. Civ. P. 5(a)(2); ECF No. 14 at 1-2, ECF No. 18 at 8. Under
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the circumstances, it is unlikely that Defendant’s inaction was the result of excusable neglect.
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Shanghai Automation Instrument Co., Ltd. v. Kuei, 194 F.Supp.2d 995, 1005 (N.D. Cal.
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2001) (finding no excusable neglect because the defendants were served with the complaint, the
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notice of entry of default, as well as the papers in support of the instant motion). This factor does
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not weigh against default judgment.
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f. Policy of Deciding Cases on the Merits
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The seventh Eitel factor considers the courts’ general disposition favoring judgments on
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the merits. Eitel 782 F.2d at 1472. Defendant’s failure to appear has made a judgment on the
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merits impossible. Accordingly, this factor does not weigh strongly against a default judgment.
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CONCLUSION
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Having considered the Eitel factors, the undersigned finds they weigh in favor of granting
Plaintiff’s motion for default judgment.
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IT IS HEREBY RECOMMENDED that:
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Plaintiff’s motion for default judgment be GRANTED in the amounts of $46,824 in
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damages and $3,776 in attorney’s fees and costs.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)
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days after these findings and recommendations are filed, any party may file written objections
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with the Court. A document containing objections should be titled “Objections to Magistrate
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Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed
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within 14 days after service of the objections. The parties are advised that failure to file
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objections within the specified time may, under certain circumstances, waive the right to appeal
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the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: January 29, 2025
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