Davis v. City of Idaho Falls et al

Filing 92

MEMORANDUM DECISION AND ORDER. Probert's Motion for Discovery and to Present Rebuttal Evidence (Dkt. 85 ) is DENIED. Probert's Motion for Determination of Joint Liability and to Assert Offset as an Affirmative Defense (Dkt. 86 ) is DENIED WITHOUT PREJUDICE. Signed by Judge David C. Nye. (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BRIANNA DAVIS,
Case No. 4:14-cv-00550-DCN
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
CITY OF IDAHO FALLS, a municipal
corporation; TAUTPHAUS PARK ZOO,
a department of the City of Idaho Falls;
RAYMOND PROBERT, an employee of
the CITY OF IDAHO FALLS and
TAUTPHAUS PARK ZOO; LINDA
BEARD, in her official capacity as
Tautphaus Park Zoo Supervisor; and
ALYSSA ROD, in her official capacity
as Tautphaus Park Zoo Supervisor,
Defendants.
I. INTRODUCTION
Currently pending before the Court is Defendant Raymond Probert’s (“Probert”)
Motion for Discovery and to Present Rebuttal Evidence (Dkt. 85), and Motion for
Determination of Joint Liability and to Assert Offset as an Affirmative Defense (Dkt. 86).
Having reviewed the record and briefs, the Court finds that the facts and legal arguments
are adequately presented. Accordingly, in the interest of avoiding further delay, and
because the Court finds that the decisional process would not be significantly aided by
oral argument, the Court will address the motion without oral argument. Dist. Idaho Loc.
Civ. R. 7.1(d)(1)(B). For the reasons outlined below, the Court DENIES both motions.

MEMORANDUM DECISION AND ORDER - 1

II. BACKGROUND
This action relates to an abuse claim between a female minor (Davis) and an adult,
male co-worker (Probert). Davis filed her Complaint on December 23, 2014, alleging a
variety of state and federal claims against various defendants, including Probert. Dkt. 1.
The claims alleged against Probert were: Damages for Depravation of Federal Rights
under 42 U.S.C. 1983; Tort in Child Abuse under I.C. § 6-1701; Negligence; Negligent
Infliction of Emotional Distress; and Intentional Infliction of Emotional Distress. Id.
Davis seeks relief in the form of general and special damages “in an amount to be proven
at trial” as well as costs and attorney fees. Id. at p. 12-13.
On March 24, 2015, Probert was served with service of process. Dkt. 61.1. Davis
partially settled her claims against all of the defendants except Probert. Accordingly, on
May 1, 2017, United States District Judge Edward Lodge dismissed the case with
prejudice as to all defendants except Probert. Dkt. 60. On August 1, 2017, Davis filed her
motion for Entry of Default against Probert. Dkt. 62. On August 2, 2017, United States
Magistrate Judge Candy Dale granted Davis’s motion and ordered the clerk to enter
Probert’s default under Federal Rule of Civil Procedure 55(a). Dkt. 62. Also on August 2,
2017, Probert’s counsel filed a notice of appearance. Dkt. 63. However, Probert did not
move to set aside the default.
On April 4, 2018, Davis filed a second Motion for Entry of a Default and Request
for a Default Judgment Evidentiary Hearing/Trial. Dkt. 72. On April 10, 2018, the Court
granted Davis’s motion and ordered the clerk to enter default. Dkt. 73. The Order
permitted Davis to “present evidence of her damages” and permitted Probert “to crossMEMORANDUM DECISION AND ORDER - 2

examine witnesses regarding the mitigation of damages.” Id. On April 13, 2018, the
Clerk entered default as to Probert. Dkt. 74.
On April 27, 2018, Probert filed a response to Davis’s motion for entry of default,
arguing that he “is entitled . . . to present evidence on his own behalf in mitigation of the
damages, and is not circumscribed to simply cross-examining the damages witnesses that
Plaintiff may choose to call at the damages trial.” Dkt. 75. On June 6, 2018, Davis replied
to Probert’s Response. Dkt. 76.
On June 7, 2018, Probert filed a motion to strike Davis reply. Dkt. 77. On July 12,
2018, Judge Dale denied Probert’s motion to strike as moot because “a final order had
already issued regarding the entry of default, Defendant’s filing, submitted as a response
to the underlying motion, was procedurally inappropriate, as were the later filings made
by the parties in connection with Defendant’s response.” Dkt. 82 p. 2.
The case was then assigned to United State District Judge David Nye on June 7,
2018 (Dkt. 79), and on January 15, 2019, the Court issued its order setting a default
judgment evidentiary hearing for May 8, 2019. Dkt. 83. On January 24, 2019, the Court
reset the hearing for May 23, 2019. Probert then filed the two instant motions.
III. APPLICABLE LAW
Rule 55 of the Federal Rules of Civil Procedure states that “[t]he court may
conduct hearings or make referrals—preserving any federal statutory right to a jury
trial—when, to enter or effectuate judgment, it needs to . . . determine the amount of
damages.” Fed. R. Civ. Pro. 55(b) (emphasis added). Thus, default judgement hearings
on damages may be conducted at the discretion of the Court.
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Upon entry of default, the complaint’s factual allegations regarding liability are taken as
true, but allegations regarding the amount of damages must be proven. See Fed. R. Civ. P
55(b)(2); Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir.1977). Where, as
here, a plaintiff’s damages are not capable of ascertainment from definite figures
contained in documentary evidence or detailed in affidavits, they require “proving up”
through an evidentiary hearing or some other means. Dolphin v. Ruiz, 2008 WL 4552940,
at *3 (C.D.Cal. 2008) (citing Dundee Cement Co. v. Howard Pipe & Concrete Prods.,
722 F.2d 1319, 1323–24 (7th Cir.1983)). A plaintiff’s burden “in ‘proving up’ damages is
relatively lenient.” Elektra Entm't Grp., Inc. v. Bryant, 2004 WL 783123, at *2 (C.D. Cal.
2004) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L. Reality Corp., 973 F.2d 155, 159
(2d Cir. 1992)). Injury is admitted upon default, but the plaintiff “still must prove that the
compensation sought relates to the damages that naturally flow from the injuries pled.”
Wu v. Ip, 1996 WL 428342, at *1 (N.D. Cal. 1996) (citing Greyhound, 973 F.2d at 159).
IV. DISCUSSION
As noted above, Judge Lodge already outlined the scope of the upcoming hearing
on damages. He determined that Davis could “present evidence of her damages” and
Probert could “cross-examine witnesses regarding the mitigation of damages.” Dkt. 73.
Probert failed to move the Court to set-aside the default, and Judge Lodge’s order
remains in effect.
Probert, however, argues that due process rights exist for defaulting defendants
during default judgement hearings for damages. He contends that these rights allow him
to present his own evidence at the hearing. In support of this position, Probert relies on
MEMORANDUM DECISION AND ORDER - 4

Rubicon Glob. Ventures, Inc. v. Chongqing Zongshen Grp. Imp./Exp. Corp., 226 F. Supp.
3d 1141 (D. Or. 2016). In that case, the district court held that “[e]ven though there is
disagreement regarding a defaulting party’s right to notice of a damages hearing, courts
generally agree that a defaulting party has “the right to participate in such a hearing.” Id.
quoting B. Finberg, Annotation, Defaulting Defendant’s Right to Notice and Hearing as
to Determination of Amount of Damages, 15 A.L.R. 3d 586 (1967). The District Court
Judge further held that a defaulting defendant “may cross-examine the opposing
witnesses and introduce evidence on his own behalf in mitigation of the damages.” Id.;
see also Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir. 1974) (concluding that exclusion
of the defendant’s evidence was proper because it went to liability rather than damages);
OIRE Oregon C, LLC v. Yaldo, No. CV 08-724-ST, 2008 U.S. Dist. LEXIS 96265, 2008
WL 5071709, at *1 (D. Or. Nov. 25, 2008) (holding that a defendant in default was
entitled to be heard on the issue of damages). Rubicon Glob. Ventures, Inc., 226 F. Supp.
3d 1147.
The Court agrees that Probert has a right to participate in the upcoming hearing.
However, the Court will limit his participation to cross-examining Davis’s witnesses.
While the Rubicon court allowed the defaulted party to take a more involved role at a
similar hearing, that decision is not binding upon this Court. Nor is the American Law
Review article or other caselaw the Rubicon Court relied upon in reaching its conclusion
overly persuasive regarding a defaulted party’s right to a more involved role at such
hearings.

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Ultimately, the Court finds it best to uphold Judge Lodge’s prior order that already
determined the scope of the hearing on damages. This still allows Probert to participate in
the hearing by cross-examining witnesses, but the Court will not allow him to present his
own evidence. Nor does the Court find that Probert is entitled to conduct discovery in this
matter. These are consequences Probert must live with for his failure to participate prior
to entry of default.
Upon default, defendants do not possess the same constitutional rights as nondefaulting defendants. See Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir. 1974) (holding
that the Seventh Amendment right to trial by jury trial does not survive a default
judgement). Prior to his default, Probert had the right to conduct discovery, but he chose
to not participate in the proceedings or contest his default. The Court will not allow
Probert to now re-open discovery and further drag out these proceedings. Accordingly,
the Court DENIES Probert’s Motion for Discovery and to Present Rebuttal Evidence
(Dkt. 85).
As for Probert’s Motion for Determination of Joint Liability and to Assert Offset
as an Affirmative Defense (Dkt. 86), Plaintiff correctly points out that such a motion is
better suited for consideration after the Court has determined what damages, if any,
Plaintiff is entitled to. See City of San Jose v. Price Waterhouse, 990 F.2d 1256 (9th Cir.
1993) (“[T]here is ample precedent for deferring the offset issue until after the
determination of the merits.”). Thus, the Court DENIES this motion (Dkt. 86)
WITHOUT PREJUDICE. Probert may file a similar motion following the Court’s
decision regarding damages.
MEMORANDUM DECISION AND ORDER - 6

V. ORDER
1. Probert’s Motion for Discovery and to Present Rebuttal Evidence (Dkt. 85) is
DENIED.
2. Probert’s Motion for Determination of Joint Liability and to Assert Offset as an
Affirmative Defense (Dkt. 86) is DENIED WITHOUT PREJUDICE.

DATED: May 22, 2019
_________________________
David C. Nye
Chief U.S. District Court Judge

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