United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's motion for default judgment (ECF
No. 9) and motion for attorney fees and costs (ECF No. 10).
To date, Defendant has not responded. For the reasons stated
below, the Court grants both motions.
entered into a Production Agreement with Defendant whereby
Defendant agreed to produce video content for Plaintiff. (ECF
No. 1 at 2.) Defendant was responsible for paying all talent
(as a pass-through expense) with the payments it received
from Plaintiff. (Id.) When Defendant completed its
work, Plaintiff made all payments to Defendant. (Id.
at 2-3.) But several individuals (“Talent”)
contacted Plaintiff and indicated that Defendant failed to
pay them for their services on the project. (Id.)
Plaintiff directly paid Talent a total of $171, 500.00 to
ensure that it has the rights to publish and broadcast the
finished video product. (Id. at 3; ECF No. 9-1 at
¶ 11.) Plaintiff demanded that Defendant reimburse
Plaintiff the $171, 500.00, but Defendant refused. (ECF No. 1
at 3; ECF No. 9-1 at ¶ 11.)
January 10, 2019, Plaintiff filed its Complaint against
Defendant for (1) breach of contract, (2) contractual and
tortious breach of the implied covenant of good faith and
fair dealing, (3) conversion, and (4) unjust enrichment. (ECF
No. 1.) On January 17, 2019, Plaintiff served the Summons on
Defendant (ECF No. 2), but Defendant never responded.
Plaintiff filed an Application for Entry of Default. (ECF
Nos. 6 and 7), and the Clerk entered default against
Defendant. (ECF No. 8.)
April 15, 2019, Plaintiff filed a motion for default judgment
requesting $171, 500. (ECF No. 9.) Plaintiff's motion
acknowledges that it pled all four of its claims in the
alternative for the same damages, and therefore focused on
its breach-of-contract claim for purposes of the motion.
(Id. at 5.) Moreover, Plaintiff filed a separate
motion for attorney's fees and costs pursuant to the
terms of the Production Agreement in the amount of $20,
251.00. (ECF No. 10 at 2-3; ECF No. 1-1, ¶ 16(a)
a default judgment is a two-step process governed by the
Federal Rules of Civil Procedure. Eitel v. McCool,
782 F.2d 1470, 1471 (9th Cir. 1986). First, “[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).
Second, after the clerk enters default, a party must seek
entry of default judgment under Rule 55(b).
entry of default by the clerk is a prerequisite to an entry
of default judgment, “a plaintiff who obtains an entry
of default is not entitled to default judgment as a matter of
right.” Warner Bros. Entm't Inc. v.
Caridi, 346 F.Supp.2d 1068, 1071 (C.D. Cal. 2004)
(citation omitted). Instead, whether a court will grant a
default judgment is in the court's discretion.
Ninth Circuit has identified the following factors as
relevant to the exercise of the court's discretion in
determining whether to grant default judgment: (1) the
possibility of prejudice to the plaintiff; (2) the merits of
the plaintiff's substantive claims; (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 the excusable
neglect; and (7) the strong policy underlying the Federal
Rules of Civil Procedure favoring decisions on the merits.
Eitel, 782 F.2d at 1471-72.
has satisfied the procedural requirements for default
judgment pursuant to Fed.R.Civ.P. 55(b). First, the Clerk
properly entered a default against Defendant pursuant to
Federal Rule of Civil Procedure 55(a). (ECF No. 8.) Second,
insofar as Defendant has not answered or otherwise responded
to the Complaint, the notice requirement of Rule 55(b)(2) is
not implicated. Thus, there is no procedural impediment to
entering a default judgment.