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Utica Mutual Insurance Company Republic Franklin Insurance Company and Utica National Insurance Group v. Black

United States District Court, D. Nevada

February 21, 2014

UTICA MUTUAL INSURANCE COMPANY REPUBLIC FRANKLIN INSURANCE COMPANY and UTICA NATIONAL INSURANCE GROUP, Plaintiff(s),
v.
LARRY BLACK, TY CIRILLO, JIMMY JOHNS FRANCHISE, LLC and JRC RESTAURANTS dba JIMMY JOHNS GOURMET SANDWICHES, Defendant(s)

REPORT & RECOMMENDATION

NANCY J. KOPPE, Magistrate Judge.

Before the Court is Plaintiffs' Motion for Default Judgment Against Defendants Larry Black, Ty Cirillo, and JRC Restaurants dba Jimmy Johns Gourmet Sandwiches ("JRC") (Docket No. 30).

I. BACKGROUND

This cas case arises out of a motorcycle accident that occurred on October 20, 2011. Docket No. 1, at 3. Defendant Ty Cirillo was traveling eastbound on Oakey Blvd on his motorcycle and Defendant Larry Black was traveling westbound in a motor vehicle. Id. It is alleged that Defendant Black was within the scope of this employment with Defendant JRC while driving the vehicle down Oakey. Id. The front of Defendant Cirillo's motorcycle struck the passenger side of Defendant Black's vehicle and both vehicles were towed from the scene. Id. Defendant Cirillo was transported to emergency care and sustained substantial injuries. Id.

On October 28, 2011, Defendant Cirillo filled a complaint in the District Court for Clark County, Nevada, against Defendant Black, Defendant JRC, and Defendant Jimmy Johns Franchise, LLC. Id. That action is the underlying litigation to this case. Id. In the underlying litigation, Defendant Cirillo alleges negligence, negligence per se, and a claim titled "res ipsa loquitur" against Defendant Black. Id. at 4. Plaintiffs have not provided the Court with any information as to the current status of that case.

On December 18, 2012, Plaintiffs filed the instant action in the District of Nevada. Docket No. 1. Plaintiffs' complaint requests that the Court enter judgment finding that (1) the Utica Mutual Insurance Company General Liability Policy provides no coverage for Defendant Black for the underlying action, (2), in the alternative, Defendant Black was not an insured under the Utica mutual Insurance Company General Liability Policy, (3) The Republic Franklin has no duty or obligation to defend or indemnify Defendant Black in the underlying action, and (4) Utica National has not obligation to defend or indemnify Defendant Black in the underlying action. Id. at 8-10.

On February 13, 2013, Defendants Black, Cirillo, and JRC were served with copies of the summons and complaint. Docket Nos. 20, 21, and 22. The summons were returned as executed to the Court on March 19-20, 2013. Id. Defendants Black, Cirillo, and JRC were given until March 5, 2013, to answer the complaint. Id. On February 27, 2013, Defendant Jimmy Johns Franchise was served with a copy of the summons and complaint. Docket No. 23. The summons was returned as executed to the Court on March 20, 2013. Id. Defendant Jimmy Johns Franchise was given until March 20, 2013, to answer the complaint. Id. To date, none of the Defendants has appeared in this action.

On March 22, 2013, Plaintiffs filed a motion for leave to file an amended complaint. Docket No. 25. The Court granted that request pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), on May 13, 2013. Docket No. 25. The Court instructed Plaintiffs to file and serve the proposed amended complaint within five days of the Court's Order. Id.

On June 24, 2013, Plaintiffs moved for entry of clerk's default as to Defendants Black, Cirillo, and JRC. Docket No. 27. The Clerk entered default against Defendants Black, Cirillo, and JRC on July 24, 2013. Docket No. 29. On December 12, 2013, Plaintiffs filed the present motion seeking default judgment against Defendant Black, Cirillo, and JRC. Docket No. 20.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 55(a), "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Fed.R.Civ.P. 55(a). Federal Rule of Civil Procedure 55(b)(2) provides that "a court may enter a default judgment after the party seeking default applies to the clerk of the court as required by subsection (a) of this rule." Fed.R.Civ.P. 55(b)(2).

On July 24, 2013, the Clerk entered default against Defendants Black, Cirillo, and JRC for their failure to plead or otherwise defend the instant lawsuit. Docket No. 29. Pursuant to Federal Rule of Civil Procedure 55(b)(2), Plaintiffs now ask this court to enter default judgment against Defendants Black, Cirillo, and JRC. Because Plaintiff does not request relief that differs from or exceeds that prayed for in the First Amended Complaint, the application for default judgment complies with Fed.R.Civ.P. 54(c). See Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 (C.D. Cal.2003).

The choice as to whether a default judgment should be entered is at the sole discretion of the trial court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). A defendant's default alone does not entitle a plaintiff to a court-ordered judgment. See id. Instead, the Ninth Circuit has determined that a court should look at seven discretionary factors before rendering a decision on default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). These factors are: (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Id. In applying these Eitel factors, "the factual allegations of the ...


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