SYNNEX Corporation v. Freeman et al

Filing 43

ORDER RE: MOTION FOR ENTRY OF DEFAULT JUDGMENT Re: Dkt. Nos. 32, 42. Signed by Judge Nathanael M. Cousins on 12/29/2014. (nclc2, COURT STAFF) (Filed on 12/29/2014)

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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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11 SYNNEX CORPORATION, a Delaware
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Plaintiff,

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Case No. 14-cv-01606 NC

Corporation,
ORDER RE: MOTION FOR
ENTRY OF DEFAULT
JUDGMENT

v.
Re: Dkt. Nos. 32, 42
THERA MARIE FREEMAN, an individual;
also known as THERA MARIE SARTORIS,
an individual; individually & collectively
doing business as PRIORITY COMPUTER
SYSTEMS; and DOES 1 to 50, inclusive,
Defendants.

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On September 11, 2014, plaintiff Synnex Corporation filed a motion seeking the

21 entry of default judgment by the Court against defendant Thera Marie Freeman, also
22 known as Thera Marie Sartoris, individually and doing business as Priority Computer
23 Systems (collectively, “defendant”). Dkt. No. 32. The Court held a hearing on the motion
24 on October 29, 2014, at which plaintiff appeared through its counsel of record. Defendant
25 has not appeared in the action. At the hearing, the Court noted several deficiencies in the
26 motion for default judgment and gave Synnex 30 days to file an amended motion. Synnex
27 timely filed its amended motion for default judgment. However, the amended motion
28 continues to suffer from the same deficiencies.
Case No. 14-cv-01606 NC
ORDER RE: MOTION FOR ENTRY
OF DEFAULT JUDGMENT

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As an initial matter, the amended motion states that Synnex “requests that the clerk

2 of the court enter default judgment” pursuant to Federal Rule of Civil Procedure 55(a).
3 Dkt. No. 42. Rule 55(a) refers to entry of default by the clerk not to entry of default
4 judgment. Rule 55(b), on the other hand, permits entry of default judgment by the clerk
5 “[i]f the plaintiff’s claim is for a sum certain or a sum that can be made certain by
6 computation.” In all other cases, the party must apply to the court for default judgment.
7 Fed. R. Civ. P. 55(b). Here, it is unclear whether Synnex intended to request default
8 judgment by the court, as its original motion stated, see Dkt. No. 32, or by the clerk, as its
9 amended motion states, see Dkt. No. 42.
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Second, Synnex asserts that defendant has agreed to the jurisdiction of this Court

11 “[p]ursuant to the terms and conditions of SYNNEX’ online e-commerce website.” Dkt.
12 No. 42-1 ¶¶ 5-6. While Synnex submitted a declaration that quoted the relevant language
13 from its online terms and conditions, and also attached the terms and conditions as an
14 exhibit, the record does not contain sufficient basis to conclude that defendant has agreed
15 to these terms and conditions. To the contrary, the terms and conditions attached to the
16 declaration are dated November 20, 2014, and no showing has been made that these terms
17 and conditions are the same as the ones to which defendant allegedly agreed at the time of
18 the Credit Application Agreement in 2001, or at the time the computer products at issue
19 were purchased, from December 12, 2012, through December 20, 2013. See Dkt. No. 42-1
20 at 9, ¶¶ 4-5. The same problem exists with respect to the additional “SYNNEX Terms and
21 Conditions,” dated April 6, 2014, attached as exhibit 1 to the complaint. See Dkt. No. 12
22 ¶ 5, 7-9.
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Third, Synnex has not submitted a declaration showing whether defendant is an

24 unrepresented minor, an incompetent person, or a person in military service. See Fed. R.
25 Civ. P. 55(b)(2); 50 U.S.C. app. § 521(b)(1).
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Fourth, Synnex has not adequately substantiated its request for prejudgment interest.

27 The declaration submitted by Synnex in support of its request for default judgment states
28 that Synnex “requires pre-trial interest at the rate of 10% per annum.” Dkt. No. 42-1 ¶ 9.
Case No. 14-cv-01606 NC
ORDER RE: MOTION FOR ENTRY
OF DEFAULT JUDGMENT

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udgment inte
erest is a su
ubstantive aspect of a p
a
plaintiff’s claim” and i governed by
is
d
1 “[P]reju
w
on
484
098,
9th
07).
2 state law in a diversity action. In re Exxo Valdez, 4 F.3d 10 1101 (9 Cir. 200
C
aw,
l
f
ipulated by a contract remains
3 Under California la “[a]ny legal rate of interest sti
ble
b
eof,
ore,
e
s
ed
dict
4 chargeab after a breach there as befo until the contract is supersede by a verd or
ew
on,”
t
t
tipulate a le rate of interest, “th
egal
he
5 other ne obligatio and if the contract does not st
on
ar
a
1
per
after a breach.” Cal. C
Civ.
6 obligatio shall bea interest at a rate of 10 percent p annum a
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e,
h
vided the leg or factu basis for its request for a
gal
ual
r
7 Code § 3289. Here Synnex has not prov
ent
it
ment
d
d
8 10 perce interest. The Credi Application Agreem entered into by defendant and the
EX
a
ions” attach to the c
hed
complaint both refer to a one and oneo
9 “SYNNE Terms and Conditi
cent
st
gh
visions in th two docu
he
uments are n identica See
not
al.
10 half perc interes rate, thoug the prov
0
1.
ex
g
ment
t
ser
11 Dkt. No. 12 at 7, 11 If Synne is seeking prejudgm interest at 10 percent as a less
1
i
d
ts
with
dant, Synnex has not
12 amount than what it is entitled to under it contract w defend
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trated that such amoun is in fact less than pr
s
nt
rovided for by the cont
tract.
13 demonst
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Fi
ifth, Synnex seeks $520 in costs for “service of process and skip tr
x
f
racing” incu
urred

m
d
ow
se
defendant a not
and
15 in this matter, but does not sho that thes costs are attributable solely to d
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d
w
reviously di
ismissed as a defendan from this action. See Dkt.
nt
e
16 to David Freeman who was pr
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17 No. 42-1 ¶ 8.
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Sy
ynnex may file an ame
ended or sup
pplemented motion for default jud
d
r
dgment

ing
ve
cies
uary
mended/sup
pplemented
19 addressi the abov deficienc by Janu 12, 2015. Any am
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(
D
4
)
erved on de
efendant, an Synnex m
nd
must
20 motion (including Dkt. Nos. 42 and 42-1) must be se
0
oof
ice
ame
ne.
nex
ot
he
21 file a pro of servi by the sa deadlin If Synn does no correct th deficiencies by
1
uary
dline, the Court will pr
C
roceed to ru on Synn
ule
nex’s motion on the cu
urrent
22 the Janu 12 dead
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23 record.
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IT IS SO OR
T
RDERED.

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Date: Decem
mber 29, 201
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_____
_________
__________
____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

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Case No. 14-cv-0160 NC
06
ORDER RE: MOTIO FOR EN
R
ON
NTRY
OF DEFAULT JUDGMENT

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