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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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,
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Plaintiffs,
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v.
12 DARYL DESHAW, an individual,
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Defendant.

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-and-

15 IMT GROUP, LLC, a Nevada limited liability
company,
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Nominal Defendant.
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I.

SUMMARY
Before the Court is Plaintiff’s motion for default judgment. (ECF No. 15.) For the

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reasons discussed herein, Plaintiffs’ motion is granted.

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II.

RELEVANT BACKGROUND

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The following facts are taken from the verified complaint. (ECF No. 19.) Plaintiffs

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are majority members of IMT Group, LLC (“IMT”), which engages in the broker and sale

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of real estate, among other services. They allege that Defendant Daryl DeShaw

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(“DeShaw”), a member of IMT, appointed himself as the “Chief Operating Officer,” and

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engaged in deceptive conduct that harm IMT and Plaintiffs. Plaintiffs allege direct and

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derivative claims on behalf of IMT. The complaint alleges claims for civil RICO, breached

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of fiduciary duty and unjust enrichment.

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DeShaw was served on September 23, 2015. (ECF No. 7.) He sought an extension

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of time until December 14, 2015, to respond to the complaint (ECF No. 8), which the Court

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granted (ECF No. 9). However, DeShaw failed to respond to the complaint or otherwise

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appear, which led to the Clerk’s entry of default. (ECF No. 13.)

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III.

DISCUSSION

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Obtaining a default judgment is a two-step process governed by the Federal Rules

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of Civil Procedure. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First, “[w]hen a

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party against whom a judgment for affirmative relief is sought has failed to plead or

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otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter

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the party’s default.” Fed. R. Civ. P. 55(a). Second, after the clerk enters default, a party

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must seek entry of default judgment under Rule 55(b).
Here, DeShaw was properly served (ECF No. 7), and the Clerk has entered default

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(ECF No. 13). Thus, Plaintiffs have satisfied the procedural requirement.

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The Ninth Circuit has identified the following factors as relevant to the exercise of

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the court’s discretion in determining whether to grant default judgment: (1) the possibility

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of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive claims; (3) the

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sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility

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

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neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring

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decisions on the merits. Eitel, 782 F.2d at 1471-72. The Court finds that Plaintiffs have

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satisfied the Eitel factors and agrees with Plaintiffs that default judgment should be

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entered.

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While Plaintiffs ask for damage in the amount of $12,000 on behalf of each Plaintiff

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for a total of $48,000 (ECF No. 15 at 4), Plaintiffs offer no evidence to support their

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request. The verified complaint does not allege a specific amount of amount. At a

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minimum, each Plaintiff must submit an affidavit identifying the amount of damage and

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explaining the evidence or basis for Plaintiff’s request for that amount.

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IV.

CONCLUSION

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It is therefore ordered that Plaintiffs’ motion for default judgment (ECF No. 15) is

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granted. It is further ordered that before the Court awards damages, Plaintiffs must file a

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supplemental affidavit from each Plaintiff that identifies the amount of damage requested

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and the evidence supporting that request. The supplemental affidavits must be filed within

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thirty (30) days

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DATED THIS 10th day of January 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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