United States District Court, D. Arizona
Honorable Raner C. Collins Senior United States District
order has been prepared for the signature of the designee of
the Chief United States District Judge pursuant to General
before the court is a motion for default judgment filed by
the plaintiffs on July 1, 2019. (Doc. 21). The defendant was
served but has not yet appeared. Id.
plaintiffs in this case allege that defendant failed to
properly transport their household goods from New Jersey to
Arizona. (Doc. 1); (Doc. 17). Their complaint raises two
causes of action: a violation of the Carmack Amendment (49
U.S.C. § 14706), which “governs the terms of
interstate shipment by domestic rail and motor carriers,
” and intentional infliction of emotional distress.
Id.; Direct Connect Logistix, Inc. v. Rd. Kings
Trucking Inc., 2016 WL 6608924, at *4 (E.D. Cal. 2016).
On December 4, 2018, the Clerk entered default against the
defendant for failing to appear. (Doc. 13). The plaintiffs
moved for a default judgment, but the court denied the motion
without prejudice explaining that the complaint failed to
properly state all the elements of a Carmack Amendment claim.
(Doc. 16). The plaintiffs filed an amended complaint on March
8, 2019. (Doc. 17). The Clerk entered default on May 14,
2019. (Doc. 20). In the pending motion, the plaintiffs again
move for default judgment against the defendant pursuant to
Fed.R.Civ.P. 55(b). (Doc. 21). The court held an evidentiary
hearing on August 12, 2019. (Doc. 23).
the entry of default, the court may issue a default judgment
against a non-appearing party. Fed.R.Civ.P. 55(b)(2). The
decision to issue judgment is a matter left to the sound
discretion of the court. Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980).
which may be considered by courts in exercising discretion as
to the entry of a default judgment include: (1) the
possibility of prejudice to the plaintiff, (2) the merits of
[the] plaintiff's substantive claim, (3) the sufficiency
of the complaint, (4) the sum of money at stake in the
action, (5) the possibility of a dispute concerning material
facts, (6) whether the default was due to excusable neglect,
and (7) the strong policy underlying the Federal Rules of
Civil Procedure favoring decisions on the merits.”
Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir.
1986). The court will assume the factual allegations made in
the complaint are true, except those related to damages.
TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915,
917-918 (9th Cir. 1987).
the court determines that the allegations in the complaint
are sufficient to establish liability, it must then determine
the ‘amount and character' of the relief that
should be awarded.” Wecosign, Inc. v. IFG Holdings,
Inc., 845 F.Supp.2d 1072, 1078 (C.D. Cal. 2012). The
court may hold a hearing or “rely on declarations
submitted by the parties.” Id. at 1079.
court first considers the sufficiency of the complaint.
See Alan Neuman Prods., Inc. v. Albright, 862 F.2d
1388, 1392 (9th Cir. 1988) (“[F]acts which are not
established by the pleadings of the prevailing party, or
claims which are not well-pleaded, are not binding and cannot
support the judgment.”); Adobe Sys., Inc. v.
Tilley, 2010 WL 309249, at *3 (N.D. Cal. 2010)
(“[W]here the allegations in a complaint are not
‘well-pleaded,' liability is not established by
virtue of the defendant's default and default judgment
should not be entered.”). The court will consider the
two claims for relief in turn beginning with the
plaintiffs' claim of intentional infliction of emotional
plaintiff suing for intentional infliction of emotional
distress must prove the defendant caused severe emotional
distress by extreme and outrageous conduct committed with the
intent to cause emotional distress or with reckless disregard
of the near-certainty that such distress would result.”
Watkins v. Arpaio, 239 Ariz. 168, 170- 71, 367 P.3d
72, 74-75 (App. 2016). “It has not been enough that the
defendant has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by
‘malice,' or a degree of aggravation which would
entitle the plaintiff to punitive damages for another
tort.” Restatement 2nd Torts § 46, comment d.
“Liability has been found only where the conduct has
been so outrageous in character, so extreme in degree, as to
go beyond all possible bounds of decency and to be regarded
as atrocious, and utterly intolerable in a civilized
plaintiffs allege in the complaint that the defendant
concealed the fact that some of their possessions were loaded
onto a truck that was involved in a serious traffic accident
and that those possessions were seized by a towage company.
(Doc. 17, p. 3). Later, the defendant falsely told the
plaintiffs that all of their goods were involved in the
accident when some of the goods were at a separate storage
facility. Id. This alleged behavior, though
certainly infuriating, does not constitute the outrageous
conduct necessary to support a claim for intentional
infliction of emotional distress. The court therefore will
not issue a default judgment on this claim. The court now
considers the plaintiffs' claim under the Carmack
Carmack Amendment “was enacted in 1906 as an amendment
to the Interstate Commerce Act” and “subjects
common carriers and freight forwarders transporting cargo in
interstate commerce to absolute liability for actual loss or
injury to property.” Direct Connect Logistix, Inc.
v. Rd. Kings Trucking Inc., 2016 WL 6608924, at *4 (E.D.
Cal. 2016). “A plaintiff must allege three elements to
establish a prima facie case of violation of the Carmack
Amendment: (1) delivery of the goods to the initial carrier
in good condition, (2) damage to the goods before delivery to
their final destination, or failure to deliver altogether,
and (3) the amount of damages.” Id.
the plaintiffs allege that (1) they “tendered their
household goods and effects in good condition to ETI for
interstate transportation from New Jersey to Arizona, ”
(2) “ETI delivered only part of [the] plaintiffs'
shipment, more than two (2) months later than the agreed
delivery date, in a damaged condition and certain items of
[the] plaintiffs' property have never been delivered by
ETI, ” and (3) they have sustained damages
“exceeding $10, 000.00.” (Doc. 17, pp. 3-4). The
plaintiffs have stated a proper claim under the Carmack
Amendment. See Direct Connect Logistix, Inc. v. Rd. Kings
Trucking Inc., 2016 WL 6608924, at *4 (E.D. Cal. 2016).
August 12, 2019, this court held an evidentiary hearing to
allow the plaintiffs an opportunity to submit evidence of
their losses. They submitted testimony under oath and written
documents that establish damages totaling $6, 464.54 in lost
or damaged furniture, $8, 969.52 in costs related to the
delay, and $28, 000 as the value of the plaintiffs' time
and effort expended to recover ...