Degroot et al v. United States of America et al

Filing 42

ORDER Denying 38 Motion for Default Judgment. The Court vacates the 8/7/2017 hearing and reschedules it for 9/5/2017 at 10:30 AM before Judge Marilyn L. Huff. The briefing schedule for the motion for summary judgment remains as previously ordered. Signed by Judge Marilyn L. Huff on 8/3/2017. (ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 Case No.: 3:15-cv-02145-H-NLS ANDREW HARRY DEGROOT, and TERESA DEGROOT ORDER DENYING MOTION FOR DEFAULT JUDGMENT Plaintiffs, v. [Doc. No. 38] UNITED STATES OF AMERICA, Defendant. On September 25, 2015, Plaintiffs Andrew Harry DeGroot and Teresa DeGroot 18 (“Plaintiffs”) filed an action in the Southern District of California against Border Patrol 19 Agents Dustin Blatchley, Luis Gutierrez, Romel Madlangbayan, Edwin Mendivil, 20 Enrique Penagos, Alberto Vallina, and the United States of America. (Doc. No. 1.) On 21 February 16, 2016, Plaintiffs filed a First Amended Complaint (“FAC”), only asserting 22 claims against Defendants Enrique Penagos and the United States of America 23 (“Defendants”), alleging excessive force and failure to supervise under Bivens, assault 24 and battery, intentional infliction of emotional distress, negligence, negligent infliction of 25 emotional distress, violation of the Unruh Act, false arrest and imprisonment, and civil 26 conspiracy. (Doc. No. 4.) On April 13, 2016, Defendants filed a motion to dismiss 27 Plaintiffs’ FAC. (Doc. No. 11.) On June 17, 2016, this Court granted Defendants’ 28 motion in part and dismissed both Bivens claims as time-barred. (Doc. No. 17.) The 1 3:15-cv-02145-H-NLS 1 Court also dismissed Plaintiffs’ Unruh Act claim and civil conspiracy claims. (Id.) The 2 Court also dismissed all claims against defendant Penagos, substituting the United States 3 (“Defendant”) in his place. (Id.) On July 20, 2016, Defendant filed an answer to 4 Plaintiffs’ FAC. (Doc. No. 18.) 5 On July 17, 2017, Defendant filed a motion for summary judgment. (Doc. No. 36.) 6 On July 24, 2017, Plaintiffs filed a response in opposition to Defendant’s motion for 7 summary judgment. (Doc. No. 37.) At the same time, Plaintiffs also filed a motion for 8 default judgment against Defendant as to the third claim for relief for assault and battery. 9 (Doc. No. 38.) On August 1, 2017, Plaintiffs filed a motion to continue to set a later 10 motion hearing date for their motion for default judgment. (Doc. No. 41.) 11 DISCUSSION 12 In their FAC, Plaintiffs asserted a claim of assault and battery against Agent 13 Penagos. (Doc. No. 4 ¶¶ 58-62.) Following Defendants’ motion to dismiss, the Court 14 substituted the United States as a defendant in place of Agent Penagos pursuant to the 15 Federal Tort Claims Act. (Doc. No. 17 at 8:7-10.) Defendant then answered the FAC. 16 (Doc. No. 18.) With regards to the assault and battery claim, Defendant’s answer states 17 “This claim has been dismissed with prejudice and no response is therefore required.” 18 (Doc. No. 18 ¶¶ 58-62.) Now, more than a year after Defendant filed its answer, 19 Plaintiffs have brought a motion for default judgment, arguing that the Court should enter 20 a default judgment in their favor with regards to the assault and battery claim because 21 Defendant failed to answer. (Doc. No. 38.) 22 As a general rule, default judgments are disfavored. Eitel v. McCool, 782 F.2d 23 1470, 1472 (9th Cir. 1986) (“Our starting point is the general rule that default judgments 24 are ordinarily disfavored. Cases should be decided upon their merits whenever 25 reasonably possible.”). Against this backdrop, district courts have broad discretion in 26 deciding whether to enter a default judgment. Id. at 1471; accord TeleVideo Sys., Inc. v. 27 Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (“Rule 55 gives the court considerable 28 leeway as to what it may require as a prerequisite to the entry of a default judgment.”). In 2 3:15-cv-02145-H-NLS 1 exercising their discretion, courts consider various factors including: “(1) the possibility 2 of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the 3 sufficiency of the complaint, (4) the sum of money at stake in the action; (4) the 4 possibility of a dispute concerning material facts; (6) whether the default was due to 5 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil 6 Procedure favor decisions on the merits.” Eitel, 782 F.2d at 1471-72. Because the 7 factors do not weigh in favor of a default judgment, the Court denies Plaintiffs’ motion. 8 Plaintiffs have not argued any prejudice arising from Defendant’s mistaken belief 9 the claim of assault and battery had been dismissed and the Court cannot discern any. 10 The parties have continued litigating the matter and Plaintiffs admit to having been on 11 notice regarding Defendant’s erroneous belief that the assault and battery claim had been 12 dismissed. (Doc. No. 38 at 2.) Furthermore, Defendant’s belief that the assault and 13 battery claim was dismissed was at most excusable neglect and can be easily remedied. 14 Finally, Plaintiffs have offered no reason why the “strong policy” favoring decisions on 15 the merits is not applicable here. 16 The Court also notes that, because Defendant is the United States of America, a 17 default judgment may only be entered “if the claimant establishes a claim or right to 18 relief by evidence that satisfies the court.” Fed. R. Civ. P. 55(d). Plaintiffs’ motion for 19 default judgment makes no attempt to show they have met this requirement. (Doc. No. 20 38.) Indeed, the motion entirely fails to address the merits of the claim and provides no 21 evidence whatsoever establishing their claim. This failure alone is reason to deny the 22 motion. Fed. R. Civ. P. 55(d); see Johnson v. United States, 2013 WL 5539390, * 2 (Oct. 23 8, 2013 N.D. Cal.) (refusing to enter default judgment where plaintiff failed to establish a 24 right to relief by evidence). 25 /// 26 /// 27 /// 28 /// 3 3:15-cv-02145-H-NLS 1 2 CONCLUSION For the foregoing reasons the Court denies Plaintiffs’ motion for default judgment, 3 (Doc. No. 38), denies their motion to set a hearing date as moot, (Doc. No. 41), and is 4 inclined to allow Defendant to remedy their deficient answer. Defendant has until 5 August 11, 2017 to file a motion to amend the pleadings. Plaintiffs may file any 6 opposition to the motion no later than August 18, 2017. No reply may be filed absent 7 further order of the Court. Furthermore, in order to resolve this matter prior to addressing 8 Defendant’s pending motion for summary judgment, (Doc. No. 36), the Court vacates the 9 August 7, 2017 hearing and reschedules it for September 5, 2017 at 10:30am. The 10 briefing schedule for the motion for summary judgment remains as previously ordered. 11 12 13 IT IS SO ORDERED. DATED: August 3, 2016 Hon. Marilyn L. Huff United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3:15-cv-02145-H-NLS

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