Clark v. Guerrero
ORDER Granting 149 Motion for Default Judgment. Signed by Judge James C. Mahan on 12/14/15. (Copies have been distributed pursuant to the NEF - TR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
MICHAEL E. CLARK,
Case No. 2:09-CV-141 JCM (PAL)
Presently before the court is plaintiff’s motion for default judgment against defendant
Adrian Guerrero. (Doc. # 149).
On September 17, 2014, this court entered an order to show cause against defendant. (Doc.
# 144). Defendant has not responded to this order in over a year and has not filed any other
documents since that date. This court ordered default (doc. #147), and the clerk entered default
against defendant. (Doc. #148).
Default judgment is appropriate “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. . .” Fed. R. Civ. P. 55(a). Federal Rule of Civil Procedure 55(b)(2) provides that “a
court may enter a default judgment after the party seeking default applies to the clerk of the court
as required by subsection (a) of this rule.” Fed. R. Civ. P. 55(b)(2).
Obtaining a default judgment entails two steps: “first, the party seeking a default judgment
must file a motion for entry of default with the clerk of a district court by demonstrating that the
opposing party has failed to answer or otherwise respond to the complaint, and, second, once the
clerk has entered a default, the moving party may then seek entry of a default judgment against the
defaulting party.” See UMG Recordings, Inc. v. Stewart, 461 F. Supp. 2d 837, 840 (S.D. Ill. 2006).
James C. Mahan
U.S. District Judge
The decision to enter a default judgment lies within the discretion of the trial court. Aldabe
v. Aldabe, 616 F.3d 1089, 1092 (9th Cir. 1980). In determining whether to grant a default
judgment, the trial court should consider the seven factors articulated in Eitel v. McCool, 782 F.2d
1470, 1471-72 (9th Cir. 1986). These factors are: (1) the possibility of prejudice to plaintiff, (2)
the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5)
the possibility of a dispute concerning material facts, (6) whether default was due to excusable
neglect, and (7) the policy favoring a decision on the merits. Id. In applying these Eitel factors,
“the factual allegations of the complaint, except those relating to the amount of damages, will be
taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ.
Plaintiff has properly complied with Rule 55. Defendant has not filed a response to this
court’s order to show cause. (Doc. #144). After considering the Eitel factors, the court finds it
appropriate to enter default judgment against the defendant.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for
default judgment (doc. # 149) be, and the same hereby, is GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECRRED that plaintiff shall prepare
and file an appropriate judgment for the court’s signature.
DATED December 14, 2015.
UNITED STATES DISTRICT JUDGE
James C. Mahan
U.S. District Judge
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