Paul Hupp v. Keith Jones ( 2012 )


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  •                              NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                         FILED
    FOR THE NINTH CIRCUIT                           JUL 12 2012
    MOLLY C. DWYER, CLERK
    U .S. C O U R T OF APPE ALS
    PAUL HUPP,                                       No. 10-56889
    Plaintiff - Appellant,            D.C. No. 2:08-cv-06927-GW-SS
    v.
    MEMORANDUM *
    KEITH D. JONES, Individually, AKA
    “Noworries”,
    Defendant - Appellee.
    Appeal from the United States District Court
    for the Central District of California
    George H. Wu, District Judge, Presiding
    Submitted June 26, 2012 **
    Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.
    Paul Hupp appeals pro se from the district court’s default judgment in his
    diversity action alleging defamation, invasion of privacy, and intentional infliction
    of emotional distress under California law. We have jurisdiction under 28 U.S.C.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    § 1291. We review for an abuse of discretion. Speiser, Krause & Madole, P.C. v.
    Ortiz, 
    271 F.3d 884
    , 886 (9th Cir. 2001) (entry of default judgment); Odima v.
    Westin Tucson Hotel, 
    53 F.3d 1484
    , 1495 (9th Cir. 1995) (damages award). We
    affirm.
    The district court did not abuse its discretion in declining to enter default
    judgment with respect to Hupp’s invasion of privacy claim because Hupp failed to
    establish that he pled a viable claim. See Eitel v. McCool, 
    782 F.2d 1470
    , 1471-72
    (9th Cir. 1986) (setting forth factors for district court to consider in exercising
    discretion to enter default judgment); Aldabe v. Aldabe, 
    616 F.2d 1089
    , 1092-93
    (9th Cir. 1980) (per curiam) (district court does not abuse its discretion in denying
    default judgment with respect to claim that lacks merit); Folgelstrom v. Lamps
    Plus, Inc., 
    125 Cal. Rptr. 3d 260
    , 265 (Ct. App. 2011) (discussing requirements for
    an invasion of privacy claim and explaining that “[t]he tort is proven only if the
    plaintiff had an objectively reasonable expectation of seclusion or solitude in the
    place, conversation or data source” (citation and internal quotation marks
    omitted)).
    The district court did not abuse its discretion in awarding a default judgment
    of $1,000 in nominal damages for Hupp’s defamation claim, because Hupp did not
    sufficiently prove that he was entitled to a greater amount of damages. See
    2                                     10-56889
    TeleVideo Sys., Inc. v. Heidenthal, 
    826 F.2d 915
    , 917-18 (9th Cir. 1987) (per
    curiam) (explaining that Fed. R. Civ. P. 55 “gives the court considerable leeway as
    to what it may require as a prerequisite to the entry of a default judgment” and that
    “upon default the factual allegations of the complaint, except those relating to the
    amount of damages, will be taken as true” (citation and internal quotation marks
    omitted)); see also Parish v. Peters, 
    1 Cal. Rptr. 2d 836
    , 845 (Ct. App. 1991)
    (default judgments require proper notice to defendant of the amount of damages
    sought, and a general jurisdictional allegation is not sufficient).
    We do not consider matters not specifically and distinctly raised and argued
    in the opening brief, nor arguments and allegations raised for the first time on
    appeal. See Padgett v. Wright, 
    587 F.3d 983
    , 985 n. 2 (9th Cir. 2009) (per curiam).
    Hupp’s remaining contentions are unpersuasive.
    AFFIRMED.
    3                                    10-56889