Tom Ver LLC v. Organic Alliance, Inc et al

Filing 146

ORDER RE MOTIONS FOR DEFAULT JUDGMENT AGAINST DEFENDANTS ORGANIC ALLIANCE AND WHITE, ECF NO 145 . Signed by Judge Lucy H. Koh on August 4, 2015. (lhklc1, COURT STAFF) (Filed on 8/4/2015)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

TOM VER LLC,
Plaintiff,

13
14
15
16

Case No.13-cv-03506-LHK
ORDER RE MOTIONS FOR DEFAULT
JUDGMENT AGAINST DEFENDANTS
CHRISTOPHER WHITE AND
ORGANIC ALLIANCE

v.
ORGANIC ALLIANCE, INC, et al.,

Re: Dkt. No. 145
Defendants.

17
18

On August 3, 2015, Plaintiff filed a brief in support of its request that Plaintiff be allowed

19

to either proceed at trial against Defendants White and Organic Alliance or be allowed a fourth

20

and final set of default judgment motions. As outlined in the Court’s July 31, 2015, pretrial

21

conference order, ECF No. 143, Plaintiff has previously submitted three deficient motions for

22

default judgment against Defendants White and Organic Alliance. The Court denied the third set

23

of motions with prejudice. ECF No. 135. Before addressing the substance of Plaintiff’s request,

24

the Court summarizes the lengthy procedural history of the instant litigation.

25

I. PROCEDURAL HISTORY

26
27
28

This action began two years ago when Plaintiff filed its complaint on July 30, 2013. ECF
1
Case No.13-CV-03506-LHK
ORDER RE MOTIONS FOR DEFAULT JUDGMENT AGAINST DEFENDANTS CHRISTOPHER WHITE AND
ORGANIC ALLIANCE

1

No. 1. In the last two years, the Court has ruled on and issued orders granting an ex parte

2

application for a temporary restraining order, ECF No. 11; granting preliminary injunction, ECF

3

No. 18; denying motion for sanctions and finding as moot motion to enforce temporary restraining

4

order, ECF No. 53; five case management orders following five case management conferences,

5

ECF Nos. 42, 90, 105, 128, 136; and order granting motions for summary judgment by Defendants

6

Rosenthal and Brookstein, ECF No. 126.

7

Plaintiff first requested that the Clerk of the Court enter default against Defendant Organic

8

Alliance on September 5, 2013, ECF No. 22, and against Defendant White on March 21, 2014,

9

ECF No. 72. The Clerk of the Court entered default against Defendant Organic Alliance on
September 16, 2013, ECF No. 30, and against Defendant White on March 27, 2014, ECF No. 74.

11
United States District Court
Northern District of California

10

The Court has specifically addressed the issue of default judgment with respect to

12

Defendants White and Organic Alliance multiple times. Plaintiff filed its first round of motions for

13

default judgment against Defendants Organic Alliance and Christopher White over a year ago on

14

June 12, 2014. ECF Nos. 79, 80. On June 30, 2014, the Clerk denied those motions without

15

prejudice for failure to provide appropriate supporting documentation and informed Plaintiff that it

16

could file the motion for disposition by the Court. ECF No. 82.

17

Three months later, on September 3, 2014, Plaintiff filed amended motions for default

18

judgment against Defendants Organic Alliance and White. ECF Nos. 86, 87. On December 15,

19

2014, the Court denied Plaintiff’s motion, once more without prejudice, because Plaintiff’s

20

motions failed to comply with Civil Local Rules 7-2(b) and 7-4(a). ECF No. 98. More specifically,

21

Plaintiff’s motion failed to cite a single case, make any argument concerning why default

22

judgment would be appropriate, and did not weigh the controlling factors for default judgment

23

under Eitel v. McKool, 782 F.2d 1470 (9th Cir. 1986).

24

At the March 11, 2015, case management conference, the Court specifically cautioned

25

Plaintiff that any renewed motion for default judgment must cite the pertinent legal authority and

26

provide relevant argument as to why default judgment against Defendants Organic Alliance and

27
28

2
Case No.13-CV-03506-LHK
ORDER RE MOTIONS FOR DEFAULT JUDGMENT AGAINST DEFENDANTS CHRISTOPHER WHITE AND
ORGANIC ALLIANCE

1

White would be appropriate. The Court also expressly admonished Plaintiff that failure to do so

2

would result in a denial of default judgment with prejudice.

3

On May 28, 2015, Plaintiff filed its third round of motions for default judgment against

4

Defendants Organic Alliance and White. ECF No. 134. Despite the Court’s express admonishment

5

on the record and the prior two denials of Plaintiff’s motions for default judgment, Plaintiff once

6

more failed to cite any legal authority or make any argument with respect to why default judgment

7

should be entered against Defendants Organic Alliance and White. For the third time, Plaintiff

8

failed to cite the Eitel factors. Instead, Plaintiff’s motion focused solely on the propriety of

9

attorney’s fees and justification for the amount of attorney’s fees.

10

On June 17, 2015, the Court denied Plaintiff’s motions for default judgment with

United States District Court
Northern District of California

11

prejudice. ECF No. 135. In addition to failing to comply with the Court’s order and the Civil

12

Local Rules, Plaintiff’s deficient submissions left the Court with no basis to determine whether the

13

Court could properly exercise personal or subject-matter jurisdiction and whether Plaintiff had

14

shown the basic elements of Plaintiff’s claims against Defendants Organic Alliance and White.

15

At the pretrial conference, Plaintiff requested that the Court consider allowing Plaintiff to

16

file a fourth set of motions for default judgment against Defendants Organic Alliance and White,

17

or allowing Plaintiff to go to trial against these absent Defendants. As Plaintiff had not made such

18

a request in its pretrial statement and was unprepared to cite any authority to the Court in support

19

of its request, the Court took a more than two hour recess to allow Plaintiff’s counsel to find

20

pertinent legal authority.

21

Following that recess, Plaintiff submitted arguments to the Court and requested leave to

22

file briefing in support of its request that the Court allow Plaintiff to seek judgment against

23

Defendants White and Organic Alliance, either at trial or by default.

24

II. DISCUSSION

25
26
27
28

In light of Plaintiff’s briefing and request, the Court GRANTS Plaintiff’s request that it be
allowed to file one last set of default judgment motions against Defendants White and Organic
3
Case No.13-CV-03506-LHK
ORDER RE MOTIONS FOR DEFAULT JUDGMENT AGAINST DEFENDANTS CHRISTOPHER WHITE AND
ORGANIC ALLIANCE

1

Alliance. Failure to cite the factors laid out in Eitel v. McKool, 782 F.2d 1470 (9th Cir. 1986), to

2

specifically identify the basis for personal and subject matter jurisdiction, and to otherwise provide

3

pertinent legal authority and argument will result in a dismissal with prejudice of Plaintiff’s claims

4

against Defendants White and Organic Alliance and entry of judgment for Defendants White and

5

Organic Alliance. The Court will not entertain a fifth attempt to move for default judgment against

6

these Defendants. Plaintiff shall file its motions against Defendants White and Organic Alliance

7

by August 24, 2015, and follow the normal procedure for requesting a hearing date from the

8

Courtroom Deputy, Ms. Sakamoto.

9

Moreover, the Court will not entertain any request for attorney’s fees that includes
Plaintiff’s fees incurred for (1) the three previous, deficient motions for default judgment; (2)

11
United States District Court
Northern District of California

10

research regarding case law to allow Plaintiff to try its case against, or file a fourth motion for

12

default judgment against, Defendants White and Organic Alliance; or (3) the briefing requesting

13

permission to file a fourth motion for default judgment against, or to try Plaintiff’s case against

14

Defendants White and Organic Alliance, ECF No. 145.

15

Trial against Defendant Booth only remains as set for August 17, 2015, at 9 a.m.

16

IT IS SO ORDERED.

17

Dated: August 4, 2015

18
19

______________________________________
LUCY H. KOH
United States District Judge

20
21
22
23
24
25
26
27
28

4
Case No.13-CV-03506-LHK
ORDER RE MOTIONS FOR DEFAULT JUDGMENT AGAINST DEFENDANTS CHRISTOPHER WHITE AND
ORGANIC ALLIANCE