Ellis v. National Renewable Energy Center
Filing
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Order by Judge Lucy H. Koh granting 37 Motion for Default Judgment; Adopting 43 Report and Recommendation. (lhklc4, COURT STAFF) (Filed on 12/21/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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TERRACE ELLIS,
Plaintiff,
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Case No. 17-CV-00497-LHK
ORDER ADOPTING REPORT AND
RECOMMENDATION AND
GRANTING
v.
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ENERGY ENTERPRISES USA, INC.,
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Defendant.
Re: Dkt. Nos. 37, 43
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Before the Court is United States Magistrate Judge Virginia DeMarchi’s Report and
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Recommendation that Plaintiff Terrace Ellis’s (“Plaintiff”) motion for default judgment be
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granted. ECF No. 43. Having reviewed the Report and Recommendation, Plaintiff’s brief before
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Judge DeMarchi, the record in this case, and the relevant law, the Court finds that the Report and
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Recommendation is well-founded in fact and in law and, therefore, adopts the Report and
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Recommendation.
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On January 31, 2017, Plaintiff, proceeding pro se, filed her original Complaint against
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Defendant Energy Enterprise USA, Inc. (“Defendant”). ECF No. 1. After Defendant failed to
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respond to Plaintiff’s Complaint, Plaintiff requested and the Clerk entered default against
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Case No. 17-CV-00497-LHK
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION FOR DEFAULT
JUDGMENT
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Defendant on July 27, 2017. ECF No. 25. On November 27, 2017, Judge DeMarchi set aside the
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entry of default and terminated as moot Plaintiff’s first motion for default judgment because Judge
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DeMarchi was “not satisfied that [Defendant] had been properly served.” ECF No. 27. On April
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13, 2018, the Clerk again entered default against Plaintiff. ECF No. 35.
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On July 24, 2018, Plaintiff filed a second motion for default judgment against Defendant.
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ECF No. 37. Plaintiff filed two sets of exhibits in support of her motion. ECF Nos. 38 & 39. On
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September 5, 2018, Judge DeMarchi ordered Plaintiff to prepare a supplemental declaration with
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exhibits, ECF No. 40, which Plaintiff filed on October 2, 2018. ECF No. 41. Defendant has not
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filed an opposition to Plaintiff’s motion for default judgment.
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On November 19, 2018, because Defendant “has never appeared and thus has not
United States District Court
Northern District of California
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consented to magistrate judge jurisdiction,” Judge DeMarchi requested that the case be reassigned
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to a District Judge and issued a Report and Recommendation. ECF No. 43. Judge DeMarchi’s
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Report and Recommendation includes an extensive discussion of the case’s procedural history and
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Plaintiff’s numerous attempts to serve Defendant and related entities. Id. at 1–4. Then, in
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accordance with the Ninth Circuit’s instructions in In re Tuli, 172 F.3d 707 (9th Cir. 1999), Judge
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DeMarchi first addressed the Court’s subject matter jurisdiction over the case, personal
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jurisdiction over Defendant, and the adequacy of Plaintiff’s service on the Defendant. Id. at 4–5.
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Next, Judge DeMarchi recommended granting Plaintiff’s second motion for default judgment
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based on the factors set forth in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986). ECF No. 43 at 5–
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9. Judge DeMarchi concluded that Plaintiff’s request for treble damages should be denied and
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recommended an award of judgment against Defendant of $8,557.00. Id. at 9–11. Judge
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DeMarchi further ordered Plaintiff to personally serve Defendant and to file a proof of service
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with the Court. Id. at 11. On December 10, 2018, Plaintiff filed a proof of service, which
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indicated that Plaintiff had served Defendant on December 6, 2018. ECF No. 46.
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Neither party has objected to the Report and Recommendation in the fourteen days since
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Plaintiff served Defendant. See 28 U.S.C. § 636(b) (providing that “[w]ithin fourteen days after
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Case No. 17-CV-00497-LHK
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION FOR DEFAULT
JUDGMENT
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being served with a copy, any party may serve and file written objections to such proposed
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findings and recommendations”).
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The Court adopts the Report and Recommendation. First, Judge DeMarchi correctly
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concluded that the Court has subject matter jurisdiction over the case and personal jurisdiction
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over Defendant. Plaintiff asserts claims under a federal statute, specifically the Telephone
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Consumer Protection Act (“TCPA”), and Defendant is incorporated in California. See ECF No.
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41, Ex. B. Judge DeMarchi also did not err in concluding that Plaintiff adequately served
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Defendant.
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Second, Judge DeMarchi applied the Ninth Circuit’s Eitel factors and properly concluded
that all seven factors weigh in favor of granting Plaintiff’s motion for default judgment. For
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United States District Court
Northern District of California
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example, Judge DeMarchi concluded that Defendant’s failure to litigate the case left Plaintiff with
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no recourse other than default judgment. See Eitel, 782 F.2d at 1471 (stating that “the possibility
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of prejudice to the plaintiff” is the first factor in deciding whether to grant default judgment). In
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addition, Plaintiff’s complaint states a claim under the TCPA because Plaintiff alleges in her third
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amended complaint that Defendant called Plaintiff’s phone 16 separate times without Plaintiff’s
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consent and using an autodialer. ECF No. 30 ¶¶ 23–27; see Meyer v. Portfolio Recovery Assocs.,
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LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (holding that a defendant violates the TCPA by calling
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a plaintiff’s cellphone using an autodialing system without the plaintiff’s consent). Finally, Judge
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DeMarchi concluded that Defendant’s failure to litigate—despite having notice of Plaintiff’s
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action for almost two years—both suggested that Defendant did not dispute the material facts and
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made resolving the action on its merits impossible.
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Third, as Judge DeMarchi concluded, Plaintiff has not demonstrated an entitlement to
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treble damages. The TCPA permits treble damages if a defendant “willfully or knowingly”
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violates the TCPA. 47 U.S.C. § 227(b)(3), (c)(5). Here, the Court cannot determine from
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Plaintiff’s third amended complaint whether Defendant’s violations were made “willfully or
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knowingly,” and thus the Court adopts Judge DeMarchi’s discretionary recommendation to award
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Case No. 17-CV-00497-LHK
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION FOR DEFAULT
JUDGMENT
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Plaintiff only statutory damages.
The Court hereby GRANTS Plaintiff’s motion for default judgment.
IT IS SO ORDERED.
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Dated: December 21, 2018
______________________________________
LUCY H. KOH
United States District Judge
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United States District Court
Northern District of California
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Case No. 17-CV-00497-LHK
ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION FOR DEFAULT
JUDGMENT
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