United States District Court, D. Nevada
CHRISTOPHER A. JONES, Plaintiffs,
ALAN ZIMMER, et al, Defendants.
ORDER DENYING MOTION FOR DEFAULT JUDGMENT (DOCKET NO. 157)
Nancy J. Koppe, United State Magistrate Judge
Pending before the Court is Plaintiffs motion for entry of default judgment against Defendant Cheryl Burson. Docket No. 157. In this case, a default was entered as to Defendant Burson. Docket No. 39. Once default has been entered, the plaintiff may apply to the Court for entry of default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2). The choice whether a default judgment should be entered is at the sole discretion of the district court. SeeAldabe 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 complaint, except those relating to the amount of damages, will be taken as true." Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977); Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Plaintiff s pending motion fails to address the Eitel factors.
In addition, the plaintiff seeking default judgment has the burden of "proving up" his damages. See, e.g., Dolphin v. Ruiz, 2008 WL 4552940, *1 (CD. Cal. Oct. 9, 2008). Generally speaking, such damages are proven up through the submission of evidence through a declaration or through an evidentiary hearing. See Id . Punitive damages are never awarded as of right, but rather require a showing that the defendant's conduct was motivated by evil motive or intent, or when it involves reckless or callous indifference to the federal protected rights of others. See Id . (discussing Smith v. Wade, 461 U.S. 30 (1983)). Plaintiffs pending motion seeks $2, 000 in damages, but fails to identify the nature of the damages sought (e.g., compensatory and/or punitive) or the precise injury that Plaintiff asserts was incurred as result of Defendant Burson's conduct. Plaintiffs pending motion further fails to include evidentiary support for the damages sought.
Accordingly, the pending motion for entry of default judgment against Defendant Burson is hereby DENIED without prejudice. Any renewed motion for entry of default judgment shall address the Eitel factors outlined above, clearly identify the damages sought and the injury ...