First American Property & Casualty Insurance Company v. Swick et al

Filing 13

ORDER granting Plaintiff's 11 MOTION for Default Judgment. Signed by Judge Benjamin H. Settle. (MW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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FIRST AMERICAN PROPERTY &
CASUALTY INSURANCE
COMPANY,
v.

CASE NO. C24-5792 BHS
ORDER

Plaintiff,

SHANNON SWICK, et al.,

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Defendants.

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THIS MATTER is before the Court on plaintiff First American Property &
Casualty Insurance Company’s motion for default judgment, Dkt. 11. The case involves
First American’s claim for a declaratory judgment that its insurance policy does not
provide coverage for defendant Barbara Waters’ 1 underlying tort claim against
defendants Shannon Swick, Michael Swick, and Swick & Sons Enterprises, Inc. Dkt. 1.
In the underlying lawsuit, Waters alleged that the Swicks’ Rottweiler bit her while she
was delivering a package for the U.S. Postal Service. Dkt. 1. First American’s complaint

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Waters conceded that her claim was not covered by First American’s policy, and she
was dismissed from this action with prejudice. Dkts. 7 and 10.

ORDER - 1

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alleges, and its motion seeks a determination, that its policy does not cover dog bites

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inflicted by Rottweilers.

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First American has demonstrated that all defendants have been served, and that

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none have appeared, answered, or otherwise defended this action. Dkt. 11 at 2. It also

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contends and demonstrates that the automatic stay imposed by Shannon Swick’s

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bankruptcy has been lifted. Dkt. 12-1. First American seeks both entry of default under

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Federal Rule of Civil Procedure 55(a) and a default judgment on its “no coverage”

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declaratory judgment claim under Rule 55(b). Dkt. 11.

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Obtaining a default judgment under Federal Rule of Civil Procedure 55 is a two-

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step process. See 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). After the clerk enters default, a party must seek

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entry of default judgment under Rule 55(b).

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Upon entry of default, the Court takes as true the factual allegations in the non-

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defaulting party’s complaint, except those related to the amount of damages. Fed. R. Civ.

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P. 8(b)(6); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987).

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Nonetheless, “[e]ntry of default does not entitle the non-defaulting party to a default

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judgment as a matter of right.” Warner Bros. Entm’t Inc. v. Caridi, 346 F. Supp. 2d 1068,

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1071 (C.D. Cal. 2004) (citation omitted). The “general rule [is] that default judgments are

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ordinarily disfavored. Cases should be decided upon their merits whenever reasonably

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possible.” Eitel, 782 F.2d at 1472 (citing Peno v. Seguros La Comercial, S.A., 770 F.2d

ORDER - 2

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811, 814 (9th Cir. 1985)). Whether to grant a default judgment lies within the district

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court’s discretion. Id. The Court exercises its discretion under the so-called Eitel factors:

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(1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff’s substantive

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claims; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action;

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(5) the possibility of a dispute concerning material facts; (6) whether the default was due

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to 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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Other than the goal of resolving cases on their merits, none of these considerations

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weigh against a default judgment in this case. There is no money at stake, there are

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apparently no disputed facts, and the Complaint asserts and appears to demonstrate that a

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claim arising out of a Rottweiler bite is expressly excluded from First American’s

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insurance policy.

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Accordingly, First American’s motion for default and for default judgment, Dkt.

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11, is GRANTED. First American has no duty to defend or indemnify defendants

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Shannon Swick (now Smith), Michael Swick, or Swick & Sons Enterprises from Waters’

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tort claims in the underlying action.

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The Clerk shall enter a JUDGMENT and close the case.

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IT IS SO ORDERED.

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Dated this 7th day of January, 2025.

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A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3