Nydes v. Osborne et al
Filing
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ORDER that 31 Motion for Default Judgment is GRANTED. FURTHER ORDERED that Plaintiff submit a proposed judgment to the Court within 10 days from the date of this order. Signed by Judge Kent J. Dawson on 2/5/13. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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HOLLY NYDES,
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Plaintiff,
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v.
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Case No. 2:11-CV-01675-KJD-PAL
DOUGLAS OSBORNE, et al.,
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ORDER
Defendants.
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Before the Court is Plaintiff Holly Nydes’s Motion for Default Judgment (#31).
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The Clerk of Court entered default (#24) against Defendants Douglas Osborne and Tail Spin
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Bar & Grill (collectively “Defendants”) on September 12, 2012. Plaintiff moves pursuant to Federal
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Rule of Civil Procedure 55(b)(2) for entry of default judgment against Defendants. The Court
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conducted a hearing on February 5, 2013, to establish the truth of the allegations and determine the
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amount of damages suffered by Plaintiff.
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Discussion
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Upon entry of default, the court takes the factual allegations in the non-defaulting party’s
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complaint as true. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir.1986). Nonetheless, while entry of
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default by the clerk is a prerequisite to an entry of default judgment, “a plaintiff who obtains an entry
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of default is not entitled to default judgment as a matter of right.” Warner Bros. Entm’t Inc. v. Caridi,
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346 F.Supp.2d 1068, 1071 (C.D.Cal.2004) (citation omitted). Instead, whether a court will grant a
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default judgment is in the court’s discretion. Id. (citations omitted).
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The Ninth Circuit has identified several relevant factors in determining whether to grant
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default judgment including: (1) the possibility of prejudice to the plaintiff; (2) the merits of the
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plaintiff’s substantive claims; (3) the sufficiency of the complaint; (4) the sum of money at stake in
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the action; (5) the possibility of a dispute concerning material facts; (6) whether the default was due
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to the excusable neglect; and (7) the strong policy favoring decisions on the merits. Eitel, 782 F.2d at
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1471–72.
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The Court has reviewed the documents and pleadings on file in this matter and finds that the
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Eitel factors support entering a default judgment in this action. The first factor supports default
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judgment because Plaintiff made a good faith effort to serve Defendants personally and properly
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served them via publication and would be prejudiced if she is unable to obtain a default judgment.
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Eitel factors 2-5 also support entry of the default judgment. In support of the substantive
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claims identified in her complaint, Plaintiff submitted documentary evidence (see #23 Affidavit of
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George E. Cromer) and made representations to the Court at the hearing which establish that Plaintiff
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was harassed by Defendant Osborne while working at Tail Spin Bar & Grill. Specifically, beginning
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in July 2008, Osborne made sexual comments toward Plaintiff and in December 2009, sent
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pornographic pictures via email to Plaintiff. Plaintiff claims to have felt intimidated by Osborne,
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although he never physically touched her. Plaintiff began experiencing marital problems, anxiety,
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and depression as a result of Osborne’s harassment. Plaintiff quit working at Tail Spin Bar & Grill
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because of the harassment. Plaintiff’s yearly income at the time she quit was approximately $50,000.
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According to the representations of Plaintiff’s Counsel, her economic damages amount to
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$50,000. Plaintiff requests a further $10,000 in attorney’s fees. Plaintiff applied for and received
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unemployment. At a hearing to determine Plaintiff’s entitlement to benefits Osborne admitted the
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key allegations of the complaint. Plaintiff received treatment for her anxiety and depression,
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including multiple visits to medical professionals over the course of six months. Plaintiff eventually
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obtained other employment with a yearly income of about $25,000.
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The final two factors also support entry of default judgment. The Court is unaware of any
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excuse for Defendants’ failure to respond to this complaint and the public policy considerations
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weigh in favor of granting Plaintiff’s a default judgment in light of the serious allegations in this
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case.
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The evidence presented before the Court is sufficient to satisfy the Court that entry of default
judgment for $50,000 damages and $10,000 in attorney’s fees is fair and reasonable.
Conclusion
IT IS HEREBY ORDERED that Plaintiff’s Motion for Default Judgment (#31) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff submit a proposed judgment to the Court within
10 days from the date of this order.
DATED this 5th day of February 2013.
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_____________________________
Kent J. Dawson
United States District Judge
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