Clark v. Guerrero

Filing 150

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL E. CLARK,

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Case No. 2:09-CV-141 JCM (PAL)
Plaintiff(s),

ORDER

v.
ADRIAN GUERRERO,

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Defendant(s).

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Presently before the court is plaintiff’s motion for default judgment against defendant
Adrian Guerrero. (Doc. # 149).

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On September 17, 2014, this court entered an order to show cause against defendant. (Doc.

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# 144). Defendant has not responded to this order in over a year and has not filed any other

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documents since that date. This court ordered default (doc. #147), and the clerk entered default

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against defendant. (Doc. #148).

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Default judgment is appropriate “when a party against whom a judgment for affirmative

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relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or

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otherwise. . .” Fed. R. Civ. P. 55(a). Federal Rule of Civil Procedure 55(b)(2) provides that “a

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court may enter a default judgment after the party seeking default applies to the clerk of the court

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as required by subsection (a) of this rule.” Fed. R. Civ. P. 55(b)(2).

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Obtaining a default judgment entails two steps: “first, the party seeking a default judgment

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must file a motion for entry of default with the clerk of a district court by demonstrating that the

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opposing party has failed to answer or otherwise respond to the complaint, and, second, once the

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clerk has entered a default, the moving party may then seek entry of a default judgment against the

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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

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The decision to enter a default judgment lies within the discretion of the trial court. Aldabe

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v. Aldabe, 616 F.3d 1089, 1092 (9th Cir. 1980). In determining whether to grant a default

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judgment, the trial court should consider the seven factors articulated in Eitel v. McCool, 782 F.2d

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1470, 1471-72 (9th Cir. 1986). These factors are: (1) the possibility of prejudice to plaintiff, (2)

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the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5)

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

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neglect, and (7) the policy favoring a decision on the merits. Id. In applying these Eitel factors,

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“the factual allegations of the complaint, except those relating to the amount of damages, will be

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taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ.

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P. 8(d).

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Plaintiff has properly complied with Rule 55. Defendant has not filed a response to this

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court’s order to show cause. (Doc. #144). After considering the Eitel factors, the court finds it

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appropriate to enter default judgment against the defendant.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for

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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

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James C. Mahan
U.S. District Judge

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