Federal Deposit Insurance Corporation v. Hsing

Filing 90

ORDER by Judge Laurel Beeler denying without prejudice 84 Motion for Default Judgment; denying 85 Motion for Default Judgment; denying 86 Motion for Default Judgment (lblc1S, COURT STAFF) (Filed on 3/10/2014)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division

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For the Northern District of California

UNITED STATES DISTRICT COURT

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FEDERAL DEPOSIT INSURANCE
CORPORATION as Receiver for
BANKUNITED F.S.B.,

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Plaintiff,
v.

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ERIC K. HSING, an individual d/b/a K.C. &
ASSOCIATES f/k/a K.C. APPRAISAL
SERVICES, type of entity unknown, and
DOES 1 through 10, inclusive,

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ORDER DENYING MOTIONS FOR
DEFAULT JUDGMENT WITHOUT
PREJUDICE
[Re: ECF Nos. 84, 85, & 86]

Defendants.
_____________________________________/
ERIC K. HSING, dba K.C. & Associates

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No. C 12-01530 LB

Third Party Plaintiff,
v.
FU TONG SUN, an individual; TOMMY
SUN, an individual, FIRST OHIO BANC &
LENDING, INC., a corporation; and ROES 1
through 100, inclusive,
Third Party Defendants.
_____________________________________/
Defendant and Third Party Plaintiff Eric K. Hsing, doing business as K.C. & Associates has filed

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separate motions for default judgment against three Third Party Defendants: (1) First Ohio Banc &

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Lending, Inc., ECF No. 84; (2) Fu Tong Sun, ECF No. 85; and (3) Xun Sun, also known as Tommy

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ORDER
C 12-01530 LB

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Sun, ECF No. 86. The motion hearing for all three motions is scheduled for April 3, 2014. See ECF

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No. 87.

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The Ninth Circuit has set forth seven factors for consideration by the district court in exercising

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its discretion to enter default judgment: (1) the possibility of prejudice to the plaintiff; (2) the merits

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of plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in

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the action; (5) the possibility of dispute concerning material facts; (6) whether default was due to

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excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure

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favoring decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

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When assessing these factors, all factual allegations in the complaint are taken as true, except those

1987). Allegations of damage are not deemed true simply because of the defendant’s default. Some

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For the Northern District of California

with regard to damages. See Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.

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UNITED STATES DISTRICT COURT

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proof of the amount is required. See Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir.

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1977).

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Some information appears to be missing from the moving papers, and it is important for the

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record to be clear because – with defaulting defendants – the undersigned will issue a report and

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recommendation to the district court.

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1. The motions (filed as applications) do not address the Eitel factors or apply them to the facts

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of this case. A moving party also must file points and authorities in support of his motion as

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required by Civil Local Rule 7-4. Mr. Hsing needs to provide the court with at least one joint

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memorandum of points and authorities that complies with these rules.

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2. Counsel asks for fees and costs but provides no basis – such as billing records or a declaration

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about the costs – to allow the court to award them. Mr. Hsing asks for $97,177.38 in attorney’s fees

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and $10,925.56 in costs from each Third Party Defendant. See Kim Decl. Supp. Default J. Motion

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Against First Ohio Banc & Lending, Inc. ¶ 15, Ex. G, ECF No. 84-2; Kim Decl. Supp. Default J.

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Motion Against Fu Tong Sun ¶ 15, Ex. F, ECF No. 85-2 at 3; Kim Decl. Supp. Default J. Motion

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Against Xun Sun ¶ 13, Ex. G, ECF No. 86-2. Mr. Hsing provides copies of invoices but these just

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show the total amounts without any detail into the nature of the costs, the attorney’s billing rates,

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ORDER
C 12-01530 LB

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qualifications, or the amount of time it took to complete identified tasks. A quick Westlaw search of

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default judgment orders will reveal the kind of information needed to support the lodestar analysis

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on a motion for default judgment.

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3. As to damages, the court understands that the damages amount appears to be the settlement

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amount with the FDIC. That being said, parties moving for default judgment need to provide some

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grounding and proof of damages. See Fed. R. Civ. P. 54(c); Sprint Nextel Corp. v. Ngo, No. 4:12-

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cv-02764 CW, 2014 WL 869486, at *2 (N.D. Cal. March 3, 2014) (discussing damages

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determinations; also discussing the Eitel factors).

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Under the circumstances, and given the ultimate reassignment, the record will be clearer after the

the Eitel factors that complies with Civil Local Rule 7-4. Accordingly, the court denies the motion

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For the Northern District of California

submission of supplemental declarations addressing the fact issues and a memorandum addressing

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UNITED STATES DISTRICT COURT

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without prejudice. Mr. Hsing must serve the defaulting parties with a copy of this order and his

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supplemental filings. He need not file duplicate copies of any existing declarations he wants to rely

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on and instead can cite them by docket number. Mr. Hsing also must file a proof of service. He also

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should notice the motion on a regular motions calendar on the ordinary schedule and serve notice of

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the briefing schedule. Mr. Hsing also may appear by telephone at the hearing via CourtCall.

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This disposes of ECF Nos. 84, 85, & 86.

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IT IS SO ORDERED

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Dated: March 10, 2013

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________________________
LAUREL BEELER
United States Magistrate Judge

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ORDER
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