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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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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

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(“Plaintiffs”) filed an action in the Southern District of California against Border Patrol

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Agents Dustin Blatchley, Luis Gutierrez, Romel Madlangbayan, Edwin Mendivil,

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Enrique Penagos, Alberto Vallina, and the United States of America. (Doc. No. 1.) On

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February 16, 2016, Plaintiffs filed a First Amended Complaint (“FAC”), only asserting

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claims against Defendants Enrique Penagos and the United States of America

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(“Defendants”), alleging excessive force and failure to supervise under Bivens, assault

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and battery, intentional infliction of emotional distress, negligence, negligent infliction of

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emotional distress, violation of the Unruh Act, false arrest and imprisonment, and civil

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conspiracy. (Doc. No. 4.) On April 13, 2016, Defendants filed a motion to dismiss

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Plaintiffs’ FAC. (Doc. No. 11.) On June 17, 2016, this Court granted Defendants’

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motion in part and dismissed both Bivens claims as time-barred. (Doc. No. 17.) The
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Court also dismissed Plaintiffs’ Unruh Act claim and civil conspiracy claims. (Id.) The

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Court also dismissed all claims against defendant Penagos, substituting the United States

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(“Defendant”) in his place. (Id.) On July 20, 2016, Defendant filed an answer to

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Plaintiffs’ FAC. (Doc. No. 18.)

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On July 17, 2017, Defendant filed a motion for summary judgment. (Doc. No. 36.)

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On July 24, 2017, Plaintiffs filed a response in opposition to Defendant’s motion for

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summary judgment. (Doc. No. 37.) At the same time, Plaintiffs also filed a motion for

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default judgment against Defendant as to the third claim for relief for assault and battery.

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(Doc. No. 38.) On August 1, 2017, Plaintiffs filed a motion to continue to set a later

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motion hearing date for their motion for default judgment. (Doc. No. 41.)

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DISCUSSION

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In their FAC, Plaintiffs asserted a claim of assault and battery against Agent

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Penagos. (Doc. No. 4 ¶¶ 58-62.) Following Defendants’ motion to dismiss, the Court

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substituted the United States as a defendant in place of Agent Penagos pursuant to the

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Federal Tort Claims Act. (Doc. No. 17 at 8:7-10.) Defendant then answered the FAC.

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(Doc. No. 18.) With regards to the assault and battery claim, Defendant’s answer states

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“This claim has been dismissed with prejudice and no response is therefore required.”

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(Doc. No. 18 ¶¶ 58-62.) Now, more than a year after Defendant filed its answer,

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Plaintiffs have brought a motion for default judgment, arguing that the Court should enter

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a default judgment in their favor with regards to the assault and battery claim because

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Defendant failed to answer. (Doc. No. 38.)

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As a general rule, default judgments are disfavored. Eitel v. McCool, 782 F.2d

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1470, 1472 (9th Cir. 1986) (“Our starting point is the general rule that default judgments

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are ordinarily disfavored. Cases should be decided upon their merits whenever

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reasonably possible.”). Against this backdrop, district courts have broad discretion in

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deciding whether to enter a default judgment. Id. at 1471; accord TeleVideo Sys., Inc. v.

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Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (“Rule 55 gives the court considerable

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leeway as to what it may require as a prerequisite to the entry of a default judgment.”). In
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exercising their discretion, courts consider various factors including: “(1) the possibility

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of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the

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sufficiency of the complaint, (4) the sum of money at stake in the action; (4) the

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possibility of a dispute concerning material facts; (6) whether the default was due to

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excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil

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Procedure favor decisions on the merits.” Eitel, 782 F.2d at 1471-72. Because the

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factors do not weigh in favor of a default judgment, the Court denies Plaintiffs’ motion.

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Plaintiffs have not argued any prejudice arising from Defendant’s mistaken belief

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the claim of assault and battery had been dismissed and the Court cannot discern any.

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The parties have continued litigating the matter and Plaintiffs admit to having been on

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notice regarding Defendant’s erroneous belief that the assault and battery claim had been

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dismissed. (Doc. No. 38 at 2.) Furthermore, Defendant’s belief that the assault and

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battery claim was dismissed was at most excusable neglect and can be easily remedied.

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Finally, Plaintiffs have offered no reason why the “strong policy” favoring decisions on

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the merits is not applicable here.

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The Court also notes that, because Defendant is the United States of America, a

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default judgment may only be entered “if the claimant establishes a claim or right to

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relief by evidence that satisfies the court.” Fed. R. Civ. P. 55(d). Plaintiffs’ motion for

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default judgment makes no attempt to show they have met this requirement. (Doc. No.

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38.) Indeed, the motion entirely fails to address the merits of the claim and provides no

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evidence whatsoever establishing their claim. This failure alone is reason to deny the

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motion. Fed. R. Civ. P. 55(d); see Johnson v. United States, 2013 WL 5539390, * 2 (Oct.

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8, 2013 N.D. Cal.) (refusing to enter default judgment where plaintiff failed to establish a

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right to relief by evidence).

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CONCLUSION
For the foregoing reasons the Court denies Plaintiffs’ motion for default judgment,

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(Doc. No. 38), denies their motion to set a hearing date as moot, (Doc. No. 41), and is

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inclined to allow Defendant to remedy their deficient answer. Defendant has until

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August 11, 2017 to file a motion to amend the pleadings. Plaintiffs may file any

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opposition to the motion no later than August 18, 2017. No reply may be filed absent

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further order of the Court. Furthermore, in order to resolve this matter prior to addressing

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Defendant’s pending motion for summary judgment, (Doc. No. 36), the Court vacates the

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August 7, 2017 hearing and reschedules it for September 5, 2017 at 10:30am. The

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briefing schedule for the motion for summary judgment remains as previously ordered.

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IT IS SO ORDERED.
DATED: August 3, 2016
Hon. Marilyn L. Huff
United States District Judge

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