Duran v. Dakota Financial, LLC et al

Filing 28

MEMORANDUM DECISION AND ORDER Plaintiffs Motion to Vacate Dismissal and Motion for Clerk's Default Judgment Against Dakota Financial, LLC (Dkt. 26 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JOEL DURAN,
Case No. 4:15-cv-00076-BLW
Plaintiff,
v.
DAKOTA FINANCIAL, LLC., et. al.,

MEMORANDUM DECISION AND
ORDER

Defendants.

INTRODUCTION
The Court has before it Plaintiff’s Motion to Vacate Dismissal and Motion for
Clerk’s Default Judgment Against Dakota Financial, LLC (Dkt. 26). For the reasons
explained below, the Court will deny the motion.
ANALYSIS
During an informal telephone conference with counsel and the Court’s staff, all
parties agreed that since Dakota Financial was the only remaining defendant, and because
the amount in controversy did not exceed $75,000, the Court lacked jurisdiction under 28
U.S.C. § 1332. Therefore, the Court dismissed the case. Dkt. 25.
About ten days after the Court dismissed the case, Duran filed his motion to vacate
the dismissal and for entry of default. The motion is supported by an argument that Duran
inadvertently omitted two months of lost opportunities while the faulty truck was being

MEMORANDUM DECISION AND ORDER - 1

repaired. He argues that this equals an additional $56,000, bringing his claim to
$108,710. – more than the $75,000 jurisdictional amount.
The only support for the additional amount of damages is the affidavit of Duran’s
counsel, which states that “[p]etitioner suffered a loss of $7,000.00 per week for eight (8)
weeks in lost opportunities while the truck in this case was in the repair shop for a total of
$56,000.00 in lost opportunities.” Rasmussen Aff., ¶ 7, Dkt. 26-1. The affidavit is
insufficient for two reasons. First, Rasmussen has no personal knowledge to make the
statement that Duran suffered such losses. Second, the losses stated by Rasmussen are
contradicted by several earlier statements made by both Rasmussen and Duran. On
January 17, 2014, Rasmussen sent to defense counsel a demand letter, proposed
Complaint verified by Duran, and Duran’s signed Affidavit in support of the proposed
complaint. Murphy Aff., Ex. A, Dkt. 27-1. In those documents, Rasmussen states that
Duran’s damages were (1) out of pocket expenses in the amount of $11,282.08 and (2)
payments made to Dakota by Duran in the amount of $10,000.00, for a total of
$21,282.08 in damages. Also, on November 28, 2013, Duran signed an affidavit which
was filed with the Verified Complaint on March 10, 2015. In that Affidavit, Plaintiff
alleges that his repairs to date were $21,140.06, plus $7,500.00 for attorney fee for a total
of $28,640.06. Dkt. 1.
Counsel’s manufactured damages, asserted in his own affidavit and without any
personal knowledge, are insufficient evidence to set aside the Court’s dismissal. In fact,
because the assertion is directly contradicted by earlier evidence attested to by both
Duran and Rasmussen, and was created only after it was clear the Court did not have
MEMORANDUM DECISION AND ORDER - 2

jurisdiction, counsel’s affidavit has no basis in fact and raises a serious question as to
whether sanctions should be imposed. Nevertheless, the Court is persuaded that it is
sufficient to simply deny the motion.
ORDER
IT IS ORDERED:
1. Plaintiff’s Motion to Vacate Dismissal and Motion for Clerk’s Default
Judgment Against Dakota Financial, LLC (Dkt. 26) is DENIED.

DATED: January 29, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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