Ellis v. National Renewable Energy Center

Filing 47

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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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 TERRACE ELLIS, Plaintiff, 13 14 Case No. 17-CV-00497-LHK ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING v. 15 ENERGY ENTERPRISES USA, INC., 16 Defendant. Re: Dkt. Nos. 37, 43 17 18 Before the Court is United States Magistrate Judge Virginia DeMarchi’s Report and 19 Recommendation that Plaintiff Terrace Ellis’s (“Plaintiff”) motion for default judgment be 20 granted. ECF No. 43. Having reviewed the Report and Recommendation, Plaintiff’s brief before 21 Judge DeMarchi, the record in this case, and the relevant law, the Court finds that the Report and 22 Recommendation is well-founded in fact and in law and, therefore, adopts the Report and 23 Recommendation. 24 On January 31, 2017, Plaintiff, proceeding pro se, filed her original Complaint against 25 Defendant Energy Enterprise USA, Inc. (“Defendant”). ECF No. 1. After Defendant failed to 26 respond to Plaintiff’s Complaint, Plaintiff requested and the Clerk entered default against 27 28 1 Case No. 17-CV-00497-LHK ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION FOR DEFAULT JUDGMENT 1 Defendant on July 27, 2017. ECF No. 25. On November 27, 2017, Judge DeMarchi set aside the 2 entry of default and terminated as moot Plaintiff’s first motion for default judgment because Judge 3 DeMarchi was “not satisfied that [Defendant] had been properly served.” ECF No. 27. On April 4 13, 2018, the Clerk again entered default against Plaintiff. ECF No. 35. 5 On July 24, 2018, Plaintiff filed a second motion for default judgment against Defendant. 6 ECF No. 37. Plaintiff filed two sets of exhibits in support of her motion. ECF Nos. 38 & 39. On 7 September 5, 2018, Judge DeMarchi ordered Plaintiff to prepare a supplemental declaration with 8 exhibits, ECF No. 40, which Plaintiff filed on October 2, 2018. ECF No. 41. Defendant has not 9 filed an opposition to Plaintiff’s motion for default judgment. 10 On November 19, 2018, because Defendant “has never appeared and thus has not United States District Court Northern District of California 11 consented to magistrate judge jurisdiction,” Judge DeMarchi requested that the case be reassigned 12 to a District Judge and issued a Report and Recommendation. ECF No. 43. Judge DeMarchi’s 13 Report and Recommendation includes an extensive discussion of the case’s procedural history and 14 Plaintiff’s numerous attempts to serve Defendant and related entities. Id. at 1–4. Then, in 15 accordance with the Ninth Circuit’s instructions in In re Tuli, 172 F.3d 707 (9th Cir. 1999), Judge 16 DeMarchi first addressed the Court’s subject matter jurisdiction over the case, personal 17 jurisdiction over Defendant, and the adequacy of Plaintiff’s service on the Defendant. Id. at 4–5. 18 Next, Judge DeMarchi recommended granting Plaintiff’s second motion for default judgment 19 based on the factors set forth in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986). ECF No. 43 at 5– 20 9. Judge DeMarchi concluded that Plaintiff’s request for treble damages should be denied and 21 recommended an award of judgment against Defendant of $8,557.00. Id. at 9–11. Judge 22 DeMarchi further ordered Plaintiff to personally serve Defendant and to file a proof of service 23 with the Court. Id. at 11. On December 10, 2018, Plaintiff filed a proof of service, which 24 indicated that Plaintiff had served Defendant on December 6, 2018. ECF No. 46. 25 Neither party has objected to the Report and Recommendation in the fourteen days since 26 Plaintiff served Defendant. See 28 U.S.C. § 636(b) (providing that “[w]ithin fourteen days after 27 28 2 Case No. 17-CV-00497-LHK ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION FOR DEFAULT JUDGMENT 1 being served with a copy, any party may serve and file written objections to such proposed 2 findings and recommendations”). 3 The Court adopts the Report and Recommendation. First, Judge DeMarchi correctly 4 concluded that the Court has subject matter jurisdiction over the case and personal jurisdiction 5 over Defendant. Plaintiff asserts claims under a federal statute, specifically the Telephone 6 Consumer Protection Act (“TCPA”), and Defendant is incorporated in California. See ECF No. 7 41, Ex. B. Judge DeMarchi also did not err in concluding that Plaintiff adequately served 8 Defendant. 9 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 11 United States District Court Northern District of California 10 example, Judge DeMarchi concluded that Defendant’s failure to litigate the case left Plaintiff with 12 no recourse other than default judgment. See Eitel, 782 F.2d at 1471 (stating that “the possibility 13 of prejudice to the plaintiff” is the first factor in deciding whether to grant default judgment). In 14 addition, Plaintiff’s complaint states a claim under the TCPA because Plaintiff alleges in her third 15 amended complaint that Defendant called Plaintiff’s phone 16 separate times without Plaintiff’s 16 consent and using an autodialer. ECF No. 30 ¶¶ 23–27; see Meyer v. Portfolio Recovery Assocs., 17 LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (holding that a defendant violates the TCPA by calling 18 a plaintiff’s cellphone using an autodialing system without the plaintiff’s consent). Finally, Judge 19 DeMarchi concluded that Defendant’s failure to litigate—despite having notice of Plaintiff’s 20 action for almost two years—both suggested that Defendant did not dispute the material facts and 21 made resolving the action on its merits impossible. 22 Third, as Judge DeMarchi concluded, Plaintiff has not demonstrated an entitlement to 23 treble damages. The TCPA permits treble damages if a defendant “willfully or knowingly” 24 violates the TCPA. 47 U.S.C. § 227(b)(3), (c)(5). Here, the Court cannot determine from 25 Plaintiff’s third amended complaint whether Defendant’s violations were made “willfully or 26 knowingly,” and thus the Court adopts Judge DeMarchi’s discretionary recommendation to award 27 28 3 Case No. 17-CV-00497-LHK ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION FOR DEFAULT JUDGMENT 1 2 3 Plaintiff only statutory damages. The Court hereby GRANTS Plaintiff’s motion for default judgment. IT IS SO ORDERED. 4 5 6 7 Dated: December 21, 2018 ______________________________________ LUCY H. KOH United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No. 17-CV-00497-LHK ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING MOTION FOR DEFAULT JUDGMENT

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