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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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 MICHAEL E. CLARK, 8 9 10 Case No. 2:09-CV-141 JCM (PAL) Plaintiff(s), ORDER v. ADRIAN GUERRERO, 11 Defendant(s). 12 13 14 Presently before the court is plaintiff’s motion for default judgment against defendant Adrian Guerrero. (Doc. # 149). 15 On September 17, 2014, this court entered an order to show cause against defendant. (Doc. 16 # 144). Defendant has not responded to this order in over a year and has not filed any other 17 documents since that date. This court ordered default (doc. #147), and the clerk entered default 18 against defendant. (Doc. #148). 19 Default judgment is appropriate “when a party against whom a judgment for affirmative 20 relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or 21 otherwise. . .” Fed. R. Civ. P. 55(a). Federal Rule of Civil Procedure 55(b)(2) provides that “a 22 court may enter a default judgment after the party seeking default applies to the clerk of the court 23 as required by subsection (a) of this rule.” Fed. R. Civ. P. 55(b)(2). 24 Obtaining a default judgment entails two steps: “first, the party seeking a default judgment 25 must file a motion for entry of default with the clerk of a district court by demonstrating that the 26 opposing party has failed to answer or otherwise respond to the complaint, and, second, once the 27 clerk has entered a default, the moving party may then seek entry of a default judgment against the 28 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 1 The decision to enter a default judgment lies within the discretion of the trial court. Aldabe 2 v. Aldabe, 616 F.3d 1089, 1092 (9th Cir. 1980). In determining whether to grant a default 3 judgment, the trial court should consider the seven factors articulated in Eitel v. McCool, 782 F.2d 4 1470, 1471-72 (9th Cir. 1986). These factors are: (1) the possibility of prejudice to plaintiff, (2) 5 the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5) 6 the possibility of a dispute concerning material facts, (6) whether default was due to excusable 7 neglect, and (7) the policy favoring a decision on the merits. Id. In applying these Eitel factors, 8 “the factual allegations of the complaint, except those relating to the amount of damages, will be 9 taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); see Fed. R. Civ. 10 P. 8(d). 11 Plaintiff has properly complied with Rule 55. Defendant has not filed a response to this 12 court’s order to show cause. (Doc. #144). After considering the Eitel factors, the court finds it 13 appropriate to enter default judgment against the defendant. 14 Accordingly, 15 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for 16 17 18 19 20 21 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 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -2-

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