Perrigo v. Premium Asset Services, LLC

Filing 13

ORDER denying without prejudice 12 Motion for Default Judgment. Signed by Magistrate Judge Peggy A. Leen on 2/9/2015. (Copies have been distributed pursuant to the NEF - DC)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

KEVIN L. PERRIGO,

7
8
9

Case No.2:14-cv-01052-GMN-PAL
Plaintiff,

ORDER

v.
(Mtn for Default - Dkt. #12)
PREMIUM ASSET SERVICES,
Defendant.

10
11

This matter is before the court on Plaintiff Kevin L. Perrigo’s Application for Default

12

Judgment (Dkt. #12), filed on February 4, 2015, which was referred to the undersigned pursuant

13

to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 1-4. The court has considered the Motion.

14

Plaintiff seeks an order pursuant to Rule 55(b) of the Federal Rules of Civil Procedure,

15

awarding him default judgment against Defendant Premium Asset Services. The Complaint

16

(Dkt. #1), filed on June 27, 2014, alleges claims under the Fair Debt Collection Practices Act, 15

17

U.S.C. §§ 1692 et seq., and the Telephone Consumer Protection Act, 47 U.S.C. § 227, related to

18

Defendant’s bill collecting activity against Plaintiff. On June 30, 2014, the Clerk of Court issued

19

Summons (Dkt. #4) against Defendant, and Plaintiff filed proof of service of process on July 3,

20

2014. See Summons Returned Executed (Dkt. #5). Defendant did not file a responsive pleading,

21

and the Clerk of Court entered default against it on July 28, 2014, on Plaintiff’s Motion (Dkt.

22

#10). See Clerk’s Entry of Default (Dkt. #11). Plaintiff seeks entry of default judgment against

23

Defendant and requests statutory, punitive, actual damages, emotional distress damages, and

24

attorney's fees and costs.

25

Obtaining a default judgment is a two-step process under Rule 55. See Eitel v. McCool,

26

782 F.2d 1470, 1471 (9th Cir. 1986); see also Fed. R. Civ. P. 55. Here, the Clerk has entered

27

default against Defendant, and Plaintiff now seeks default judgment. The grant or denial of a

28

motion for default judgment is within the discretion of the court. See Lau Ah Yew v. Dulles, 236
1

1

F.2d 415, 416 (9th Cir. 1956); Warner Bros. Entm’t Inc. v. Caridi, 346 F. Supp. 2d 1068, 107

2

(C.D. Cal. 2004). In determining whether to exercise its discretion to enter a default judgment,

3

the court considers the following factors: (1) the possibility of prejudice to Plaintiff, (2) the

4

merits of Plaintiff's substantive claim and the sufficiency of the complaint, (3) the sum of money

5

at stake in the action, (4) the possibility of a dispute concerning material facts, (5) whether the

6

default was due to excusable neglect, and (6) the strong policy underlying the Federal Rules of

7

Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471-72.

8

Plaintiff’s Application recognizes that the court should consider the factors enumerated

9

by the Ninth Circuit in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). However,

10

Plaintiff has not addressed any of those factors or made any other argument why the court should

11

exercise its discretion to enter default judgment against Defendant.

12

Accordingly,

13

IT IS ORDERED that Plaintiff’s Motion for Default Judgment (Dkt. #12) is DENIED

14
15

WITHOUT PREJUDICE.
Dated this 9th day of February, 2015.

16
17
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
2