Lewis v. Extradition Transport of America

Filing 25

ORDER. Lewis's Motion for Default Judgment 22 to the extent he is requesting entry of default is granted. The Clerk of Court is directed to enter the default of Defendant Extradition Transport of America. A hearing shall be held on Lewis' ;s Motion for Default Judgment on January 9, 2014, at the Russell Smith Courthouse in Missoula, Montana. No later that December 16, 2013, Lewis shall file a notice with the Court indicating that he has made arrangements on his own to appear at the January 9, 2014, hearing or that he wishes to appear by video conferencing. Lewis's Motion to Appoint Receivership 23 is denied. Lewis's Motion to Enforce Judgment and Appoint Receivership 24 is denied. Signed by Jeremiah C. Lynch on 12/2/2013. Mailed to Lewis. (TAG, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

l:/.s. Dlstn~:l :»Jrt
District Of Mo,';,',.,;:,

~,

CV 13-00138-M-DWM-JCL

STANFORD ALLEN LEWIS, JR,

Missoule'

Plaintiff,
vs.

ORDER

EXTRADITION TRANSPORT OF
AMERICA,
Defendant.
Pending are Plaintiff Stanford Lewis's Motion for Default Judgment (Doc.
22), Motion to Appoint Receivership (Doc. 23); and Motion to Enforce Judgment
and Appoint Receivership (Doc. 24). The Court views the referenced motions as a
request for entry of default and request for entry of default judgment pursuant to
Rule 55 of the Federal Rules of Civil Procedure.
Rule 55(a) provides:
When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party's
default.
Fed.R.Civ.P.55(a). On October 24,2013, the Court directed the United States
Marshal's Service to personally serve Defendant Extradition Transport of
America. (Doc. 13.) On November 8, 2013, the Marshal's Service filed proof of
1

service indicating the Complaint was served on the Billy Gene Taylor, Jr. at
Extradition Transport of America on November 4, 2013. (Proof of Service, Doc.
21 at 2.) As indicated on the summons, Defendant had 21 days after service of the
summons to file a responsive pleading. (Summons, Doc. 14.) No responsive
pleading has been filed. Accordingly, the Clerk of Court will be directed to enter
default.
Rule 55(b) then requires the Court to decide whether to award a default
judgment. Lewis alleges Defendant violated his Fourteenth Amendment Due
Process rights when it failed to provide the minimal civilized measure of life's
necessities in deliberate indifference to his safety during a prisoner transport from
Arizona to Missoula, Montana in May 2013. (Complaint, Doc. 2 at 6.). Read
liberally, the Complaint alleges violations under 42 U.S.C. § 1983, invoking
subject matter jurisdiction. 28 U.S.C. § 1331,28 U.S.C. § 1343(a).
The Ninth Circuit has set forth the following factors for a district court to
consider before exercising its discretion to award a default judgment:
(1) the possibility of prejudice to the plaintiff; (2) the merits of
plaintiffs substantive claim; (3) the sufficiency of the complaint; (4)
the sum of money at stake in the action; (5) the possibility of a
dispute concerning material facts; (6) whether the default was due to
excusable neglect; and (7) the strong policy underlying the Federal
Rules of Civil Procedure favoring decisions on the merits.

2

Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Here, it will be
presumed that Lewis will suffer prejudice because Defendant refused to respond to
the Complaint and without a default judgment Lewis would have no recourse for a
recovery. The Court has already considered the sufficiency of the Complaint and
there is no indication that default was due to excusable neglect because Defendant
still has not responded. Therefore, the first, third, and sixth factors have been met.
However, Lewis has given no information regarding the merits of his claim,
the amount of his damages, or the possibility of a dispute concerning material
facts. In the absence of liquidated damages or damages capable of mathematical
calculation, a hearing is necessary to determine the amount of a default judgment
award. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981)("it is well settled
that a default judgment for money may not be entered without a hearing unless the
amount claims is a liquidated sum or capable of mathematical calculation."
(citation omitted)). Here, Lewis's claimed damages are neither liquidated nor
capable of mathematical calculation. A hearing is therefore necessary. The Court
will schedule a hearing at which Lewis may present testimony regarding the sum
of money sought, the merits of his claims, and the possibility of a dispute
concerning material facts.
Lewis has also filed a Motion to Appoint Receivership and attached a

3

durable general power of attorney. (Doc. 23.) The motion will be denied. To the
extent Lewis wants Loretta Russell (the individual to whom Lewis gave power of
attorney) to collect on any judgment that may be awarded by the court, that is a
process that Lewis must work out on his own. This Court will not be involved in
the collection of a judgment issued from this Court. Therefore, Lewis's motion to
enforce the judgment will also be denied.
Lewis must also be advised that he cannot have Loretta Russell act on his
behalf in this action. A statutory power of attorney cannot authorize Ms. Russell
to sign and file documents with the Court on Lewis's behalf. Unless Ms. Russell
is a member of the Bar of this Court, she may not sign documents for Lewis in this
action.
Based on the foregoing, the Court issues the following:
ORDER

1. Lewis' Motion for Default Judgment (Doc. 22) to the extent he is
requesting entry of default is granted. The Clerk of Court is directed to enter the
default of Defendant Extradition Transport of America.
2. A hearing shall be held on Lewis's Motion for Default Judgment at
10:00 a.m. on January 9, 2014 at the Russell Smith Courthouse in Missoula,
Montana.
4

3. No later that December 16,2013, Lewis shall file a notice with the Court
indicating that he has made arrangements on his own to appear at the January 9,
2014 hearing or that he wishes to appear by video conferencing.
4. Lewis's Motion to Appoint Receivership (Doc. 23) is denied.
5. Lewis's Motion to Enforce Judgment and Appoint Receivership (Doc.
24) is denied.
6. Plaintiff must keep the Court advised of any change of address.
DATED this 2nd day of December, 2013.

/s/ Jeremiah C. Lynch
Jeremiah C. Lynch
United States Magistrate Judge

5