United States District Court, D. Nevada
October 3, 2014
BOARD OF TRUSTEES OF THE CONSTRUCTION INDUSTRY AND LABORERS HEALTH AND WELFARE TRUST, et al., Plaintiff(s)
DEMO & DOORS ENTERPRISES, et al., Defendant(s
JAMES C. MAHAN, District Judge.
Presently before the court is cross-defendant SureTec Insurance Co.'s motion for default judgment against cross-defendant Demo & Doors Enterprises. (Doc. # 91).
Default judgment is appropriate "when 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..." 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).
Obtaining a default judgment entails two steps: "first, the party seeking a default judgment must file a motion for entry of default with the clerk of a district court by demonstrating that the opposing party has failed to answer or otherwise respond to the complaint, and, second, once the clerk has entered a default, the moving party may then seek entry of a default judgment against the defaulting party." See UMG Recordings, Inc. v. Stewart, 461 F.Supp.2d 837, 840 (S.D. Ill. 2006). Where a party has not been properly served, there is no basis for a court to enter default judgment. See Fairly v. Potter, 2003 WL 402261, *4 (N.D. Cal. 2003).
The choice whether to enter a default judgment lies within the discretion of the trial court. Aldabe v. Aldabe, 616 F.3d 1089, 1092 (9th Cir. 1980). In the determination of whether to grant a default judgment, the trial court should consider the seven factors articulated in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). These factors are: (1) the possibility of prejudice to plaintiff, (2) the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a dispute concerning material facts, (6) whether default was due to excusable neglect, and (7) the policy favoring a decision on the merits. Id. In applying these Eitel factors, "factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977); see Fed.R.Civ.P. 8(d).
SureTec has properly complied with Rule 55 and now asks the court to enter default judgment against Demo & Doors under Rule 55(b)(2). SureTec filed an answer and cross-claim against Demo & Doors on January 6, 2014. (Doc. # 27). Demo & Doors was served through its resident agent on January 14, 2014. (Doc. # 33). To date, Demo & Doors has not pled or otherwise responded to SureTec's cross-claim and the deadline to do so has passed.
SureTec moved for entry of clerk's default against Demo & Doors on February 10, 2014. (Doc. # 54). On February 13, 2014, the clerk of court entered default. (Doc. # 59). After considering the Eitel factors, the court finds it appropriate to enter default judgment against Demo & Doors regarding SureTec's cross-claims. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, DECREED that plaintiff's motion for default judgment of forfeiture (doc. # 91) is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall prepare an appropriate judgment.