Matt, et al., v. Deshaw

Filing 16

ORDER granting ECF No. 15 Plaintiff's Motion for Default Judgment. Plaintiffs must file supplemental affidavits by 2/9/2018. Signed by Judge Miranda M. Du on 1/10/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 CLYDE MATT, an Individual; DONALD Case No. 2:15-cv-00982-MMD-VCF PARKER, an Individual; PHILLIP HENKLE, 9 an Individual; ESTRELLA CARINO, an ORDER Individual, 10 Plaintiffs, 11 v. 12 DARYL DESHAW, an individual, 13 Defendant. 14 -and- 15 IMT GROUP, LLC, a Nevada limited liability company, 16 Nominal Defendant. 17 18 I. SUMMARY Before the Court is Plaintiff’s motion for default judgment. (ECF No. 15.) For the 19 20 reasons discussed herein, Plaintiffs’ motion is granted. 21 II. RELEVANT BACKGROUND 22 The following facts are taken from the verified complaint. (ECF No. 19.) Plaintiffs 23 are majority members of IMT Group, LLC (“IMT”), which engages in the broker and sale 24 of real estate, among other services. They allege that Defendant Daryl DeShaw 25 (“DeShaw”), a member of IMT, appointed himself as the “Chief Operating Officer,” and 26 engaged in deceptive conduct that harm IMT and Plaintiffs. Plaintiffs allege direct and 27 derivative claims on behalf of IMT. The complaint alleges claims for civil RICO, breached 28 of fiduciary duty and unjust enrichment. 1 DeShaw was served on September 23, 2015. (ECF No. 7.) He sought an extension 2 of time until December 14, 2015, to respond to the complaint (ECF No. 8), which the Court 3 granted (ECF No. 9). However, DeShaw failed to respond to the complaint or otherwise 4 appear, which led to the Clerk’s entry of default. (ECF No. 13.) 5 III. DISCUSSION 6 Obtaining a default judgment is a two-step process governed by the Federal Rules 7 of Civil Procedure. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, “[w]hen a 8 party against whom a judgment for affirmative relief is sought has failed to plead or 9 otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter 10 the party’s default.” Fed. R. Civ. P. 55(a). Second, after the clerk enters default, a party 11 must seek entry of default judgment under Rule 55(b). Here, DeShaw was properly served (ECF No. 7), and the Clerk has entered default 12 13 (ECF No. 13). Thus, Plaintiffs have satisfied the procedural requirement. 14 The Ninth Circuit has identified the following factors as relevant to the exercise of 15 the court’s discretion in determining whether to grant default judgment: (1) the possibility 16 of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claims; (3) the 17 sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility 18 of a dispute concerning material facts; (6) whether the default was due to the excusable 19 neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring 20 decisions on the merits. Eitel, 782 F.2d at 1471-72. The Court finds that Plaintiffs have 21 satisfied the Eitel factors and agrees with Plaintiffs that default judgment should be 22 entered. 23 While Plaintiffs ask for damage in the amount of $12,000 on behalf of each Plaintiff 24 for a total of $48,000 (ECF No. 15 at 4), Plaintiffs offer no evidence to support their 25 request. The verified complaint does not allege a specific amount of amount. At a 26 minimum, each Plaintiff must submit an affidavit identifying the amount of damage and 27 explaining the evidence or basis for Plaintiff’s request for that amount. 28 /// 2 1 IV. CONCLUSION 2 It is therefore ordered that Plaintiffs’ motion for default judgment (ECF No. 15) is 3 granted. It is further ordered that before the Court awards damages, Plaintiffs must file a 4 supplemental affidavit from each Plaintiff that identifies the amount of damage requested 5 and the evidence supporting that request. The supplemental affidavits must be filed within 6 thirty (30) days 7 DATED THIS 10th day of January 2018. 8 9 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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