United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFFS'
MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST NERT SERVICES,
Richard L. Puglisi United States Magistrate Judge.
the Court is Plaintiffs' Motion for Entry of Default
Judgment Against Defendant Nert Services, Inc., filed on
September 20, 2017 (“Motion”). ECF No. 9.
Defendant was served with a copy of the Motion, but did not
file an opposition or otherwise respond to the Motion.
See ECF No. 9-8. The Court found the Motion suitable
for disposition without a hearing pursuant to Rule 7.2(d) of
the Local Rules of Practice of the United States District
Court for the District of Hawaii. ECF No. 10. After careful
consideration of the Motion, the declaration, exhibits, and
the record established in this action, the Court FINDS AND
RECOMMENDS that the Motion be GRANTED.
filed their Complaint against Defendant on July 26, 2017. ECF
No. 1, Compl. The Complaint alleges that Defendant entered
into a collective bargaining agreement agreeing to contribute
and pay to Plaintiffs certain amounts for employee benefits
for work performed by Defendant's covered employees.
Id. ¶¶ 6-12. Contributions were to be paid
on or before due dates specified in the collective bargaining
agreement. Id. ¶ 8. Plaintiffs claim that
Defendant failed to make required contributions. Id.
¶ 13. Plaintiffs claim they are entitled to liquidated
damages, interest, 401(k) lost earnings interest, and
attorneys' fees and costs. Id. ¶¶
13-18. The Clerk entered default against Defendant pursuant
to Rule 55(a) of the Federal Rules of Civil Procedure on
September 8, 2017. ECF No. 7. The present Motion followed.
judgment may be entered for the plaintiff if the defendant
has defaulted by failing to appear and the plaintiff's
claim is for a “sum certain or for a sum which can by
computation be made certain[.]” Fed.R.Civ.P. 55(b)(1),
(2). The granting or denial of a motion for default judgment
is within the discretion of the court. Haw.
Carpenters' Trust Funds v. Stone, 794 F.2d 508,
511-12 (9th Cir. 1986). Entry of default does not entitle the
non-defaulting party to a default judgment as a matter of
right. Valley Oak Credit Union v. Villegas, 132 B.R.
742, 746 (9th Cir. 1991). Default judgments are ordinarily
disfavored, and cases should be decided on their merits if
reasonably possible. Eitel v. McCool, 782 F.2d 1470,
1472 (9th Cir. 1986). The court should consider the following
factors in deciding whether to grant a motion for default
(1) the possibility of prejudice to the plaintiff;
(2) the merits of 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, 782 F.2d at 1471-72.
default “the factual allegations of the complaint,
except those relating to the amount of damages, will be taken
as true.” TeleVideo Sys., Inc. v. Heidenthal,
826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v.
United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)).
The allegations in the complaint regarding liability are
deemed true, but the plaintiff must establish the relief to
which she is entitled. Fair Hous. of Marin v.
Combs, 285 F.3d 899, 906 (9th Cir. 2002). Also,
“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) (citing Danning v.
Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)).