Brooks v. House of CB USA, LLC. ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VALERIE BROOKS, Case No. 2:20-cv-1606-JAM-JDP 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 13 v. ECF No. 8 14 HOUSE OF CB USA, LLC, ORDER TO SET ASIDE CLERK’S ENTRY 15 Defendant. OF DEFAULT JUDGMENT 16 ECF No. 7 17 18 This case is before the court on plaintiff’s motion for default judgment. ECF No. 8. As 19 explained below, the record fails to demonstrate that defendant was properly served with a copy 20 of the summons and complaint. Accordingly, I will deny plaintiff’s motion for default judgment 21 without prejudice, and I will set aside the clerk’s entry of default. 22 In plaintiff’s motion for default judgment, she claims that defendant was served by 23 personal service upon defendant’s registered agent. ECF No. 8 at 2. However, plaintiff’s proof 24 of service reflects substituted service on “Kalra Ramos, Person in Charge” at an unidentified 25 facility at 8448 Melrose Ave., West Hollywood, California, with service by mail to the same 26 location. See ECF No. 5. Plaintiff was required either (1) to serve defendant’s agent at the 27 registered address, or (2) to serve a person in charge at that same address and then mail a copy of 28 the summons and complaint to the agent at that address. See Fed. R. Civ. P. 4(h), 4(e)(1) 1 (permitting a corporation to be served in accordance with state law); Cal. Civ. Proc. Code 2 § 415.20(a) (“In lieu of personal delivery of a copy of the summons and complaint” to the 3 authorized agent, “a summons may be served by leaving a copy of the summons and complaint 4 . . . at [the agent’s] usual mailing address . . . with the person who is apparently in charge thereof, 5 and by thereafter mailing a copy of the summons and complaint by first-class mail . . . .”). The 6 California Secretary of State’s website shows that defendant’s authorized agent for service is Ian 7 Ashton, whose in-state address is 189 The Grove Dr., Los Angeles, California.1 Plaintiff has not 8 shown that he properly served defendant. 9 Additionally, plaintiff’s motion for default judgment does not mention, let alone analyze, 10 the controlling standards for this motion set out in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th 11 Cir. 1986). Under Eitel, before granting a motion for default judgment, the court must consider: 12 (1) possible prejudice to the plaintiff; (2) the merits of the plaintiff’s claim; (3) the sufficiency of 13 the complaint; (4) the sum of money at stake; (5) the possibility of a factual dispute; (6) whether 14 the default was potentially due to excusable neglect; and (7) the general policy that cases be 15 decided on the merits. See id. In considering these factors, “the factual allegations of the 16 complaint, except those relating to the amount of damages, will be taken as true.” Geddes v. 17 United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977). Here, plaintiff seeks resolution of the case 18 as a class action, but the class has not been certified. Plaintiff seeks $5,000,000 in damages, but 19 she has not provided evidence to explain or justify that amount. Hence, beyond the lack of proper 20 service, the Eitel factors support a denial of plaintiff’s motion. 21 Accordingly, it is hereby ORDERED that the clerk’s entry of defendant’s default, ECF 22 No. 7, is set aside, and plaintiff’s motion for default judgment, ECF No. 8, is denied without 23 prejudice. 24 25 26 1 The court takes judicial notice of defendant’s entity profile from the California Secretary 27 of State’s website. Fed. R. Evid. 201; see Gerritsen v. Warner Bros.. Entm’t, Inc., 112 F. Supp. 3d 1011, 1033-34 (C.D. Cal. 2015) (taking judicial notice of business entity profile from the 28 California Secretary of State’s website). 1 | 1718 SO ORDERED. 3 ( — Dated: _ July 2, 2021 Jess Vote 4 JEREMY D. PETERSON ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 ul 12 13 14 15 16 7 18 19 20 21 29 23 24 25 26 27 28