Firebaugh v. The United States of America et al

Filing 54

ORDER granting Plaintiff's 52 Motion for Default Judgment; directing Plaintiff to submit a supplemental affidavit within 30 days. Signed by Judge Miranda M. Du on 9/3/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Plaintiff,
v.

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Case No. 3:12-cv-00242-MMD-WGC

CURTIS FIREBAUGH,

ORDER GRANTING PLAINTFF’S
MOTION FOR DEFAULT JUDGMENT

THE UNITED STATES OF AMERICA,
BRIAN BERTOLINI, an individual,
TIM VEDDER, an individual,
And DOES I-X, inclusive

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Defendants.

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I.

SUMMARY

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Before the Court is Plaintiff’s Motion for Default Judgment (“Motion”). (Dkt. no.

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52.) Defendants Brian Bertolini and Tim Vedder have not responded to the Motion. For

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the reasons stated below, the Motion is granted.

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II.

BACKGROUND

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A.

Factual Background

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Plaintiff was fired from Bertolini Trucking, a commercial motor carrier, in January

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2008. (Dkt. no. 1 ¶ 16.) Plaintiff alleges that between November 2007 and January 2008,

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he and another driver refused to haul one of Bertolini Trucking’s trailers because of an

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unsafe welded leaf spring. (Id. ¶ 11.)

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On November 29, 2007, Vedder, Bertolini Trucking’s manager, advised Plaintiff

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that he was to take a drug test in Elko, Nevada. Vedder knew, however, that if Plaintiff

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drove to the testing facility that day, he would exceed his service hours. (Id. ¶ 13.)

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Rather than exceeding his service hours, Plaintiff took the drug test the next day, on

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November 30, 2007. (Id. ¶ 14.) The test was negative. (Id. ¶ 15.)

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In January 2008, Bertolini Trucking’s management told Plaintiff that he would be

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fired if he continued to refuse to pull the unsafe trailer. (Id. ¶ 17.) Plaintiff refused and

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threatened to report Bertolini Trucking’s use of the unsafe trailer. (Id.) He was fired in

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January 2008, about five weeks after he took his drug test. (Id. ¶ 16) Plaintiff

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subsequently filed a complaint with the United States Department of Labor/Occupational

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Safety and Health Administration (“OSHA”), and with the United States Department of

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Transportation (“USDOT”). (Id.) Both USDOT and OSHA investigated the termination.

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USDOT conducted its investigation in March 2008, and concluded that Bertolini

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Trucking appropriately terminated Plaintiff for refusing to take the drug test on November

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29, 2007. (Id. ¶¶ 20–21.) USDOT did not confirm whether the welded leaf spring was

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unsafe, or whether Bertolini Trucking had been using the trailer. (Id.) Plaintiff contends

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that Bertolini and Vedder referred to USDOT’s conclusions in advising prospective

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employers that Plaintiff had been fired for refusing to take a drug test. (Id. ¶ 27.)

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OSHA completed its investigation in May 2010, concluding that Plaintiff was

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terminated because he had threatened to report Bertolini Trucking for using the unsafe

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trailer. (Id. ¶ 28.) OSHA further concluded that Bertolini and Vedder tried to damage

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Plaintiff’s reputation and ability to find work by stating that Plaintiff had failed the drug

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test. (Id.)

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Plaintiff alleges that as a result of Bertolini’s and Vedder’s actions, he was unable

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to obtain comparable employment between 2008 and 2012, and suffered lost wages and

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was forced to liquidate his assets in the amount of $208,641.00. (Id. ¶ 30.) Plaintiff

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brought a negligence claim against USDOT and defamation claims against Bertolini and

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Vedder. (Id. at 5-7.)

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B.

Procedural History

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Plaintiff filed his Complaint against USDOT, Bertolini, and Vedder on May 5,

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2012, and summons were issued to all three defendants on July 3, 2012. (Dkt. nos. 6,
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7.) USDOT and Bertolini accepted service later that month, but Vedder did not. (See dkt.

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nos. 8, 9.) Plaintiff received multiple extensions of time to locate and serve Vedder.

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Plaintiff attempted to serve Vedder by personal service or by mail at his two last-known

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addresses, which were in California and Nebraska. (Dkt. nos. 32, 35, 36.) After those

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attempts failed, the Court granted Plaintiff leave to serve Vedder by publication. (Dkt. no.

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33.) Plaintiff published summonses in two newspapers in Nebraska and California

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between April and May 2013. (Dkt. nos. 39, 40, 41.)

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In the meantime, USDOT filed a motion to dismiss (dkt. no. 21), which the Court

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granted. (Dkt. no. 46.) Neither Bertolini nor Vedder, however, answered the Complaint or

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otherwise appeared. Plaintiff subsequently moved for an entry of default against them.

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(Dkt. no. 48.) On August 4, 2014, the Clerk entered default. (Dkt. no. 49.)

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Plaintiff now moves for default judgment against Bertolini and Vedder, seeking

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$200,972.12 in damages, punitive damages in an amount to be determined by the Court,

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and costs totaling $1,427.15. (Dkt. no. 52 at 6.)

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III.

LEGAL STANDARD

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Obtaining a default judgment is a two-step process governed by Rule 55 of the

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Federal Rules of Civil Procedure. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986).

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First, “[w]hen a party against whom a judgment for affirmative relief is sought has failed

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to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk

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

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default, a party must seek entry of default judgment under Rule 55(b).

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Upon entry of default, the court takes the factual allegations in the non-defaulting

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party's complaint as true, except for allegations regarding damages. TeleVideo Sys., Inc.

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v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per curiam) (quoting Geddes v.

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United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)). But the “entry of default does not

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entitle the non-defaulting party to a default judgment as a matter of right.” Warner Bros.

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Entm't Inc. v. Caridi, 346 F. Supp. 2d 1068, 1071 (C.D. Cal. 2004) (quoting Valley Oak

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Credit Union v. Villegas (In re Villegas), 132 B.R. 742, 746 n.5 (B.A.P. 9th Cir.))
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(alteration omitted). Instead, whether a court will grant a default judgment is in the court's

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discretion. Id.

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

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

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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

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

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excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil

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

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IV.

DISCUSSION

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A.

Service of Process

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As a preliminary matter, the Court finds that both Bertolini and Vedder were

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afforded adequate service of process.1 Rule 4(e) provides that an individual within a

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judicial district of the United States may be served by delivering a copy of the summons

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and complaint to the individual personally, or by following state law where the district

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court is located, among other forms of service. Fed. R. Civ. P. 4(e)(1), (e)(2)(A). Here,

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Bertolini was personally served and thus provided with adequate service of process.

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The Nevada Rules of Civil Procedure provide that when a person resides outside

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of the state, has left the state, or “cannot, after due diligence, be found within the state,”

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a court may grant an order allowing service to be made by publication of summons. Nev.

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R. Civ. P. 4(e)(1)(i). “[D]ue diligence is measured by the qualitative efforts of a specific

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plaintiff seeking to locate and serve a specific defendant.” Abreu v. Gilmer, 985 P.2d

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746, 749 (Nev. 1999). Here, after making numerous attempts to locate and serve

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This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. For the
purposes of diversity jurisdiction, “diversity of citizenship is assessed at the time the
action is filed.” Freeport-McMoRan, Inc. v. K N Energy Inc., 498 U.S. 426, 428 (1991)
(per curiam). At the time this lawsuit was filed, Plaintiff was a citizen of Nevada, Bertolini
was a citizen of California, and Vedder was a citizen of either California or Nebraska.
The Complaint, moreover, requested more than $200,000 in damages, which exceeds
the $75,000 amount-in-controversy threshold.
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Vedder, Plaintiff was granted leave to publish the summons. (Dkt. no. 33.) Plaintiff

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subsequently published the summons in the two last-known locations of Vedder,

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provided proof of the publications, and mailed a copy of the summons and complaint to

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Vedder’s last-known addresses. (Dkt. nos. 35, 36, 39, 40, 41.) Plaintiff displayed due

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diligence in attempting to locate and serve Vedder. Plaintiff therefore provided Vedder

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with adequate service of process.

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B.

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Plaintiff has satisfied the procedural requirements for default judgment. Pursuant

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to Rule 55(a), the Clerk properly entered a default against Bertolini and Vedder.

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Because neither Bertolini nor Vedder has answered or otherwise responded to the

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Complaint, the notice requirement of Rule 55(b)(2) is not implicated. Thus, there is no

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procedural impediment to entering a default judgment.

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C.

Procedural Requirements

Eitel Factors
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Possibility of Prejudice

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The first Eitel factor “considers whether the plaintiff will suffer prejudice if default

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judgment is not entered.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177

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(S.D. Cal. 2002). Bertolini and Vedder have not made an appearance, or answered or

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otherwise responded to the Complaint. If Plaintiff’s Motion is not granted, then it is

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unlikely that Plaintiff will have another means for recovery. Thus, there is a possibility of

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prejudice to Plaintiff. This factor weighs in favor of default judgment.

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2.

Substantive Merits and Sufficiency of the Complaint

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The second and third Eitel factors consider whether the complaint sufficiently

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states a claim for relief pursuant to the “liberal pleading standards embodied in Rule 8.”

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Danning v. Lavine, 572 F.2d. 1386, 1389 (9th Cir. 1978); see Fed. R. Civ. P. 8.

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Here, Plaintiff asserts defamation against Bertolini and Vedder. Under Nevada

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law, a prima facie case of defamation is established if the plaintiff alleges: “(1) a false

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and defamatory statement by the defendant concerning the plaintiff; (2) an unprivileged

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publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or
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presumed damages.” Pacquiao v. Mayweather, 803 F. Supp. 2d 1208, 1211 (D. Nev.

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2011) (citing Wynn v. Smith, 16 P.3d 424, 427 (2001)). “If the defamation tends to injure

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the plaintiff in his or her business or profession, it is deemed defamation per se, and

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damages will be presumed.” Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 (Nev. 1993).

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The determination of whether a statement is defamatory is a question of law. Branda v.

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Sanford, 637 P.2d 1223, 1225–26 (Nev. 1981). In making that determination, the

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statement must be “reviewed in [its] entirety and in context.” Chowdhry, 851 P.2d at 463.

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Plaintiff alleges that Bertolini and Vedder falsely advised prospective employers

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that Plaintiff was terminated because he refused to take a drug test. (Dkt. no. 1 ¶ 27.)

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They also relayed findings issued by USDOT, which had concluded that Plaintiff was

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properly fired because of the drug test. (Id. ¶ 21.) Plaintiff asserts that Bertolini and

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Vedder knew that he could not, in fact, take the drug test at the requested time because

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he would have exceeded his service hours for that day. (Id. ¶ 13.) He instead took the

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drug test the next day; the test produced negative results. (Id. ¶¶ 14-15.) He continued to

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drive for Bertolini Trucking for approximately five more weeks before he was terminated.

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(Id. ¶ 16.)

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Plaintiff contends that the true reason for his termination was his refusal to drive a

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trailer that had an unsafe welded leaf spring, and his threat to report Bertolini Trucking’s

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use of the trailer. (Id. ¶¶ 27–29, 37, 41.) Thus, even in light of USDOT’s findings, Plaintiff

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argues that Bertolini’s and Vedder’s statements to prospective employers were false. To

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corroborate these allegations, Plaintiff points to OSHA’s finding that Plaintiff was fired

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because he threatened to report the unsafe trailer. (Id. ¶ 28.) OSHA further found that

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Bertolini and Vedder attempted to damage Plaintiff’s reputation and his ability to find

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replacement employment by suggesting that Plaintiff had failed the drug test. (Id. ¶ 28.)

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In taking the factual allegations of Plaintiff’s complaint as true and in their entirety,

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the Court finds that Plaintiff has sufficiently stated a claim for defamation per se against

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Bertolini and Vedder. That Plaintiff refused to take a drug test is a statement susceptible

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to a false, defamatory meaning that has a tendency to injure Plaintiff in his profession.

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Therefore, the second and third Eitel factors weigh in favor of default judgment.
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Sum of Money at Stake

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In assessing the fourth factor, the Court considers “the amount of money

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requested in relation to the seriousness of the defendant’s conduct, whether large sums

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of money are involved, and whether ‘the recovery sought is proportional to the harm

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caused by [the] defendant’s conduct.’” Curtis v. Illumination Arts, Inc., 33 F. Supp. 3d

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1200, 1212 (W.D. Wash. 2014) (quoting Landstar Ranger, Inc. v. Parth Enters., Inc., 725

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F. Supp. 2d 916, 921 (N.D. Cal. 2010).

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In the context of defamation per se, “[d]amages are presumed ‘because of the

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impossibility of affixing an exact monetary amount for present and future injury to the

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plaintiff’s reputation, wounded feelings and humiliation, [or] loss of business.” K-Mart

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Corp. v. Washington, 866 P.2d 274, 284 (Nev. 1993) (quoting Gertz v. Robert Welch,

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Inc., 418 U.S. 323, 373 n.4 (1974) (White, J., dissenting)), abrogated on other grounds

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by Pope v. Motel 6, 114 P.3d 277, 283 (Nev. 2005). A factfinder may “assess damages

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considered to be the natural and probable consequences of the defamatory words on

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proof of the defamation alone.” Id. But a plaintiff must offer competent evidence to

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support the damages sought. Bongiovi v. Sullivan, 138 P.3d 433, 448 (Nev. 2006). To

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determine whether a damages award is excessive, “courts look to how offensive the

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slanderous remark was, whether it was believed, how widely it was disseminated, and

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the plaintiff’s prominence and professional standing in the community.” Id.

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Plaintiff seeks $200,972.12, costs in the sum of $1,427.15, and punitive damages

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in an amount to be determined by the Court.2 Plaintiff asserts that he “was told by some

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of [his] prospective employers that [he] was not hired because Brian Bertolini and Tim

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Vedder advised them [that he had] failed to take a drug test.” (Dkt. no. 53 ¶ 9.) As a

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result, Plaintiff claims that he was unable to obtain comparable replacement employment

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In the Complaint, Plaintiff sought $1,000,000 in punitive damages. (Dkt. no. 1 at

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from 2008 until 2012, which caused Plaintiff to lose wages and forced him to liquidate his

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assets. (Id. ¶ 10; dkt. no. 1 ¶ 30.)

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In 2009, OSHA submitted, on Plaintiff’s behalf, a demand for payment of lost

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wages and compensatory damages to Bertolini Trucking’s bankruptcy proceedings. (See

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dkt. no. 52-10.) That claim totaled $99,357.82, but Plaintiff received a pro rata share of

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$4,544.69 from the estate. (See id. at 4-12.) Plaintiff reasserts the remaining balance in

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this action, along with more than $100,000 in other income and assets he lost after

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OSHA’s submission to the bankruptcy proceeding. (Dkt. no. 53 at 2-3.)

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Although Plaintiff has alleged that he incurred these damages after Bertolini

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Trucking fired him, it is not clear that the requested damages are the “natural and

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probable consequences” of Bertolini’s and Vedder’s defamatory statements. K-Mart

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Corp., 866 P.2d at 284. As an example of Bertolini’s and Vedder’s defamatory

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statements, Plaintiff offers a potential employer’s information request form that is dated

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March 3, 2008, and on which Vedder noted that Plaintiff had refused to take a drug test.

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(Dkt. no. 52-6 at 2.) But Plaintiff is seeking compensation for certain damages that

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existed upon his termination — such as back pay beginning on January 9, 2008 — as

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opposed to damages to compensate Plaintiff for Bertolini’s and Vedder’s defamatory

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statements. (See dkt. no. 52-10 at 8.) Furthermore, Plaintiff seeks damages for

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defamation between 2011 and 2012, after OSHA took steps to resolve some of the false

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records giving rise to Plaintiff’s defamation claim. (See dkt. no. 52-8 at 2-4.) Thus,

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Plaintiff has not shown that the damages sought are proportional to his injuries.

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Finally, to make out a claim for punitive damages, Plaintiff must show “by clear

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and convincing evidence that the defendant[s] [are] ‘guilty of oppression, fraud or malice,

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express or implied.” Bongiovi, 138 P.3d at 450-51 (quoting NRS § 42.005). Plaintiff

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claims that he is entitled to punitive damages because Bertolini and Vedder were

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malicious, fraudulent, or oppressive in misrepresenting the reason for his termination.

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(See dkt. no. 1 ¶¶ 39, 43.) Even accepting as true Plaintiff’s factual allegation that

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Bertolini and Vedder knowingly made false statements about his termination (see id.
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¶ 13), Plaintiff has not shown by clear and convincing evidence that he is entitled to

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punitive damages.

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Because Plaintiff’s damages appear to be disproportionate to the harm suffered,
this Eitel factor weighs against default judgment.
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Possible Dispute of Material Facts

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The fifth factor considers the possibility of dispute regarding any material facts in

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the case. PepsiCo, Inc., 238 F. Supp. 2d at 1177. “Upon entry of default, all well-pleaded

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facts in the complaint are taken as true, except those relating to damages.” Id. Because

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Bertolini and Vedder have failed to appear, the Court accepts Plaintiff’s well-pleaded

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factual allegations as true. There is accordingly little possibility of dispute over the

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material facts, and this factor weighs in favor of default judgment.

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5.

Excusable Neglect

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This factor “considers the possibility that the default resulted from excusable

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neglect.” Id. As noted above, both Bertolini and Vedder were properly served with the

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pursuant to Rule 4(e) of the Federal Rules of Civil Procedure and Rule 4(e)(1)(i) of the

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Nevada Rules of Civil Procedure. Bertolini was personally served roughly two years

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before the Clerk entered default, and Vedder was served by publication over a year

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before the Clerk entered default. (Dkt. nos. 9, 39, 40, 41, 49.) Given the time period

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during which they had notice of the action against them, it is unlikely that the Bertolini

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and Vedder failed to respond due to excusable neglect. This factor therefore weighs in

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favor of default judgment.

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6.

Decision on the Merits

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The seventh Eitel factor reflects a strong preference for deciding cases on their

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merits whenever reasonably possible. See Eitel, 782 F.2d at 1472. This preference,

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however, is not dispositive when standing alone. PepsiCo, Inc., 238 F. Supp. 2d at 1177

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(citing Kloepping v. Fireman’s Fund, No. C 94-2684 TEH, 1996 WL 75314, at *3 (N.D.

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Cal. Feb. 13, 1996)). Although a decision on the merits is desirable, Bertolini’s and

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Vedder’s failure to appear and to respond to the Complaint renders such a decision
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“impractical, if not impossible.” Id. Thus, this factor will not preclude the Court from

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entering default judgment against Bertolini and Vedder.

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Taken together, the Eitel factors weigh in favor of default judgment. The Court will

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therefore grant default judgment, but will defer awarding damages pending a

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supplemental affidavit from Plaintiff.

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D.

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As discussed above, Plaintiff’s requested damages — both compensatory and

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punitive — appear to be disproportionate to the harm he alleges. Given Plaintiff’s

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defamation per se claim, the Court can fashion damages to compensate Plaintiff for the

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probable consequences of Bertolini’s and Vedder’s defamatory statements. K-Mart

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Corp., 866 P.2d at 284. But Plaintiff appears to request damages that are related to his

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termination, rather than the repercussions of Bertolini’s and Vedder’s defamatory

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statements. Accordingly, before the Court can fashion damages, Plaintiff must file a

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supplemental affidavit that outlines the damages he incurred as a result of the

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defamatory statements.

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V.

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Damages

CONCLUSION
It is therefore ordered that Plaintiff Curtis Firebaugh’s Motion for Default Judgment

(dkt. no. 52) is granted.

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It is further ordered that before the Court awards damages, Plaintiff must file a

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supplemental affidavit that outlines the evidence supporting his request for costs and

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damages, both compensatory and punitive. The supplemental affidavit must be filed

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within thirty (30) days.

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DATED THIS 3rd day of September 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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