Sebastian v. One Sweet World LLC ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stacey Sebastian, No. CV-20-2080-PHX-DGC 10 Plaintiff, ORDER 11 v. 12 One Sweet World, LLC, d/b/a Tempe Improv, 13 Defendant. 14 15 16 Plaintiff Stacey Sebastian has filed a motion for default judgment against 17 Defendant One Sweet World, LLC. Doc. 16. The Court will deny the motion. 18 A. Background. 19 In October 2020, Plaintiff filed a complaint against Defendant under the 20 Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(c). Doc. 1. Plaintiff 21 alleges that Defendant called her on her cell phone for solicitation purposes without her 22 consent and despite the fact that her phone number has been on the Do Not Call Registry 23 since 2008. Id. ¶¶ 10-16. Plaintiff seeks an award of statutory and treble damages under 24 the TCPA. Id. at 4. 25 Defendant was served with the summons and complaint on November 19, 2020 26 (Doc. 7), but has failed to answer or otherwise respond to the complaint. The Clerk 27 entered Defendant’s default on February 1, 2021. Doc. 24. Plaintiff moved for default 28 judgment against Defendant on April 19. Doc. 16. 1 B. Discussion. 2 Plaintiff seeks default judgment under Federal Rule of Civil Procedure 55(a). Id. 3 at 1. That rule provides for the entry of default, which the Clerk has entered in this case. 4 See Doc. 24. Default judgment is governed by Rule 55(b). Plaintiff does not address that 5 rule in her motion. See Doc. 16; Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) 6 (affirming denial of default judgment where the plaintiff “apparently fails to understand 7 the two-step process required by Rule 55”). 8 What is more, the Ninth Circuit in Eitel identified the following factors to be 9 considered and weighed in deciding whether default judgment is appropriate: (1) the 10 possibility of prejudice to the plaintiff, (2) the merits of the claims, (3) the sufficiency of 11 the complaint, (4) the amount of money at stake, (5) the possibility of factual disputes, 12 (6) whether default is due to excusable neglect, and (7) the policy favoring decisions on 13 the merits. 782 F.2d at 1471-72. Plaintiff does not address any of these factors in her 14 motion. 15 The motion also fails to comply with Rule 7.1 of the Court’s Local Rules of Civil 16 Procedure regarding the form of motions and other papers. The Clerk previously notified 17 Plaintiff’s counsel of similar violations of Local Rule 7.1 (see Docs. 5, 10, 13), but 18 counsel continues to file deficient documents (see Docs. 9, 12, 16). Plaintiff’s counsel 19 are advised that they must become familiar with, and follow, the Court’s Local Rules. 20 See Leffers v. Amazon, Inc., No. CV-20-00974-PHX-DGC, 2020 WL 8834780, at *1 21 (D. Ariz. June 10, 2020) (explaining that even pro se litigants must follow the Local 22 Rules) (citations omitted).1 23 Plaintiff’s motion for default judgment (Doc. 16) will be denied without prejudice. 24 Plaintiff shall have until May 21, 2021 to file a proper motion for default judgment under 25 Rule 55(b) that addresses each Eitel factor and complies fully with the Local Rules. 26 27 1 The Local Rules are available in the Clerk’s office and online at http://www.azd. 28 uscourts.gov/local-rules. 1 IT IS ORDERED: 2 1. Plaintiffs motion for default judgment (Doc. 16) is denied without prejudice. 4 2. Plaintiff shall have until May 21, 2021 to file a proper motion for default 5 | judgment. 6 Dated this 11th day of May, 2021. 7 9 David G. Campbell 10 Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-