J & J Sports Productions, Inc. v. Salcedo et al, No. 2:2010cv03037 - Document 15 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 06/18/11 RECOMMENDING that the 9 Motion for Default Judgment be denied without prejudice. Motion referred to Judge Frank C. Damrell, Jr. Objections due within 14 days. (Michel, G)

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J & J Sports Productions, Inc. v. Salcedo et al Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 J & J SPORTS PRODUCTIONS, INC., 11 Plaintiff, 12 13 14 No. CIV S-10-3037 FCD DAD v. EDITH SILVINA SALCEDO and MARIA TERESA SALCEDO, INDIVIDUALLY and d/b/a SILVINA’S BASKET, 15 FINDINGS & RECOMMENDATIONS Defendants. 16 17 / This matter first came before the court on May 20, 2010, for hearing of plaintiff’s 18 motion for default judgment. (Doc. No. 9). Andre Lelievre, Esq., who is not an attorney of 19 record in this case, appeared specially for attorney Thomas P. Riley. Jr. on behalf of plaintiff. 20 Defendant Maria Teresa Salcedo appeared on her own behalf. No appearance was made by or on 21 behalf of defendant Edith Silvina Salcedo. At that time the hearing was continued by the court to 22 June 17, 2011, to provide defendant Maria Salcedo with an opportunity to discuss the case with 23 her sister, defendant Edith Salcedo, and to contact plaintiff’s attorney of record. 24 The matter came before the court on June 17, 2011, for further hearing of 25 plaintiff’s motion. Brian Wanerman, Esq., who is not an attorney of record in this case, appeared 26 specially for attorney Thomas P. Riley. Jr. on behalf of plaintiff. Defendant Maria Teresa 1 Dockets.Justia.com 1 Salcedo appeared on her own behalf. No appearance was made by or on behalf of defendant 2 Edith Silvina Salcedo. 3 The court’s records reflect that on May 23, 2011, plaintiff filed a notice of the 4 filing of a bankruptcy petition by defendant Edith Silvina Salcedo on May 12, 2011. (Doc. No. 5 12.) On May 24, 2011, the assigned district judge granted plaintiff’s request that this action be 6 stayed as to defendant Edith Silvina Salcedo, individually and d/b/a Silvina’s Basket, only, 7 pending disposition of plaintiff’s claims against defendant Edith Silvina Salcedo in the 8 bankruptcy proceeding. (Doc. No. 13.) 9 Upon hearing the arguments of plaintiff’s representative and of defendant Maria 10 Teresa Salcedo, the undersigned determined that plaintiff’s motion is premature because there are 11 two defendants in this action and the motion for default judgment is stayed with respect to one of 12 them. When a plaintiff seeks final judgment against fewer than all claims or defendants, Federal 13 Rule of Civil Procedure 54(b) applies. See Baker v. Limber, 647 F.2d 912, 916 (9th Cir. 1981) 14 (applying Rule 54(b) to default judgment). Rule 54(b) provides as follows: 15 (b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief – whether as a claim, counterclaim, crossclaim, or third-party claim for relief – or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. 16 17 18 19 20 21 22 Fed. R. Civ. P. 54(b) (emphasis added). Here, plaintiff’s motion provides no basis for an express 23 determination by the court that there is no just reason for delay in entering a default judgment 24 against one of two defendants. 25 26 The Ninth Circuit has counseled caution with respect to judgments under Rule 54(b). 2 1 Judgments under Rule 54(b) must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties. The trial court should not direct entry of judgment under Rule 54(b) unless it has made specific findings setting forth the reasons for its order. Those findings should include a determination whether, upon any review of the judgment entered under the rule, the appellate court will be required to address legal or factual issues that are similar to those contained in the claims still pending before the trial court. A similarity of legal or factual issues will weigh heavily against entry of judgment under the rule, and in such cases a Rule 54(b) order will be proper only where necessary to avoid a harsh and unjust result, documented by further and specific findings. 2 3 4 5 6 7 8 9 Morrison-Knudsen Co., Inc. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981). See also Wood v. 10 GCC Bend, LLC, 422 F.3d 873, 879 (9th Cir. 2005) (reversing the district court’s order granting 11 plaintiff’s Rule 54(b) request because the case was routine, partial adjudication of one of several 12 related claims or issues during the litigation was also routine, and the case would inevitably 13 return to the appellate court on the same set of facts). In Wood, the Ninth Circuit noted that it 14 “cannot afford the luxury of reviewing the same set of facts in a routine case more than once 15 without a seriously important reason,” such as the possibility that the plaintiff would gain or lose 16 a significant amount of money if the appeal was not heard until the end of the litigation. 422 17 F.3d at 882. See also Eugene N. Gordon, Inc. v. La-Z-Boy, Inc., No. 2:06-cv-2353 MCE DAD, 18 2007 WL 2688843, at *4 (E.D. Cal. Sept. 13, 2007) (denying defendant’s Rule 54(b) motion to 19 enter final judgment on the claims of certain plaintiffs where defendant failed to identify any 20 facts pointing to a harsh and unjust result if the court did not grant the motion). 21 The present case is not “the unusual case in which the costs and risks of 22 multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced 23 by pressing needs of the litigants for an early and separate judgment as to some claims or 24 parties,” and the identical nature of the legal and factual issues against the remaining defendant 25 weighs heavily against entry of judgment under Rule 54(b). There is no evidence that a Rule 26 ///// 3 1 54(b) judgment against defendant Maria Teresa Salcedo is necessary to avoid a harsh and unjust 2 result. 3 4 Accordingly, IT IS RECOMMENDED that plaintiff’s April 5, 2011 motion for default judgment (Doc. No. 9) be denied without prejudice as premature. 5 These findings and recommendations will be submitted to the United States 6 District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 7 fourteen (14) days after these findings and recommendations are filed, any party may file written 8 objections with the court. A document containing objections should be titled “Objections to 9 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 10 objections within the specified time may, under certain circumstances, waive the right to appeal 11 the District Court’s order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 DATED: June 18, 2011. 13 14 15 16 DAD:kw Ddad1\orders.civil\jjsp-salcedo3037.mdj.f&r 17 18 19 20 21 22 23 24 25 26 4

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