Paul Hupp v. Keith Jones

NOT FOR PUBLICATION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.
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