United States District Court, D. Arizona
Kenneth C. Taylor, Plaintiff,
Gouri G. Nair, Defendant.
DAVID G. CAMPBELL, District Judge.
Plaintiff Kenneth C. Taylor has filed a motion for default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure. Doc. 15. The Court will deny the motion.
Plaintiff filed a complaint against Defendant Gouri G. Nair asserting various claims arising from Defendant's alleged breach of contract and failure to fulfill her fiduciary duty by committing fraud. Doc. 1, ¶ 6. Plaintiff's complaint seeks damages of $1, 500, 000 and a permanent injunction preventing Defendant from "performing any act or duties as a licensed attorney in any court in the United States." Id. at 2.
Default was entered by the Clerk on February 20, 2014. Doc. 11. On March 6, 2014, Plaintiff filed a motion for default judgment. Doc. 12. Because Plaintiff failed to address the proper legal standard, the Court denied his motion without prejudice. Doc. 14. Plaintiff has filed a new motion seeking a default judgment. Doc. 15.
II. Legal Standard.
Once a party's default has been entered, the district court has discretion to grant default judgment. See Fed.R.Civ.P. 55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors the court may consider include (1) the possibility of prejudice to the plaintiff, (2) the merits of the claim, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a dispute concerning material facts, (6) whether default was due to excusable neglect, and (7) the strong policy favoring a decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In applying these factors, "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977); see Fed.R.Civ.P. 8(d) ("Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading."). "However, necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default." Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992).
A. Possible Prejudice to Plaintiff.
The Court cannot determine that the first Eitel factor favors Plaintiff. Plaintiff, who is appearing pro se in this action, filed a return of service stating that he served the complaint on Defendant by certified mail. Doc. 6. The return attached a document showing that Defendant was served in Vermont. Id. at 2.
Rule 4 of the Federal Rules of Civil Procedure does not expressly permit service on an individual defendant by certified mail. Fed.R.Civ.P. 4(e). The rule provides, however, that service may be completed in accordance with the law of the state where service is made. Id., Rule 4(e)(1). Thus, if the state where a defendant is located permits service by certified mail, Plaintiff may use this means of service. LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir. 1999).
Plaintiff does not address the law of Vermont and has made no showing that service by certified mail is permitted there. The Court's review of Rule 4(f) of the Vermont Rules of Civil Procedure suggests that service by certified mail is permitted only in limited circumstances, none of which applies here.
In addition, Plaintiff asserts in his motion that Defendant Gouri Nair signed and acknowledged certified receipt of the summons and complaint. Doc. 15 at 1. The document attached to the return of service, however, shows that it was signed by a Rewj Raj. Doc. 6 at 2. Plaintiff has not shown that Defendant received actual notice of this lawsuit.
Because the record before the Court suggests that service may not have been completed in accordance with law or in a manner that provided actual notice to Defendant, the Court cannot conclude Plaintiff will be prejudiced if default judgment is not entered. Prejudice results from a defendant's ...