United States District Court, D. Oregon
PACIFIC NORTHWEST REGIONAL COUNCIL OF CARPENTERS, a labor organization, on behalf of its member BILL JENKINS, Plaintiff,
KELAYE CONCRETE LLC, an Oregon corporation, Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Pacific Northwest Regional Council of Carpenters
(“Plaintiff”) brings this breach of contract
action on behalf of Bill Jenkins (“Jenkins”)
against Kelaye Concrete LLC (“Defendant”).
Plaintiff alleges that Defendant failed to pay Jenkins
penalty wages, allegedly incurred due to Defendant's
failure timely to pay Jenkins regular wages. Defendant failed
to answer or otherwise respond to Plaintiff's Complaint,
and on January 20, 2017, the Court entered an Order of
Default against Defendant. ECF 8. Before the Court is
Plaintiff's motion for a default judgment against
Defendant. For the reasons that follow, Plaintiff's
motion is granted in part.
Federal Rule of Civil Procedure 55(a), the Clerk of the Court
is required to enter an order of default if a party against
whom affirmative relief is sought fails timely to answer or
otherwise defend an action. Fed.R.Civ.P. 55(a) (“When a
party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise, the clerk must
enter the party's default.”). Upon the entry of
default, the Court accepts “the well-pleaded factual
allegations” of the complaint “as true.”
DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th
Cir. 2007) (quoting Cripps v. Life Ins. Co. of N.
Am., 980 F.2d 1261, 1267 (9th Cir. 1992)); see also
Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir.
1977). The court, however, does not accept as true facts that
are not well-pleaded, conclusions of law, or facts relating
to the amount of damages. DIRECTV, 503 F.3d at 854;
Geddes, 559 F.2d at 560; see also Derek Andrew,
Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir.
2008) (“‘The general rule of law is that upon
default the factual allegations of the complaint, except
those relating to the amount of damages, will be taken as
true.'” (quoting TeleVideo Sys., Inc. v.
Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987))).
default has been entered against a defendant, a court may
enter a default judgment against that defendant. See
Fed. R. Civ. P. 55(b). “The district court's
decision whether to enter a default judgment is a
discretionary one.” Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980); see also Dreith v. Nu Image,
Inc., 648 F.3d 779, 786 (9th Cir. 2011) (noting that a
district's court decision whether to enter a default
judgment is reviewed for abuse of discretion). In Eitel
v. McCool, 782 F.2d 1470 (9th Cir. 1986), the Ninth
Circuit set out factors to guide a district court's
consideration of whether to enter a default judgment. See
DIRECTV, 503 F.3d at 852 (noting that Eitel
“set out factors to guide district court's
determination regarding the appropriateness of granting a
The Ninth Circuit in Eitel held:
Factors 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 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.
782 F.2d at 1471-72. The “starting point” of the
court's analysis, however, “is the general rule
that default judgments are ordinarily disfavored.”
Id. at 1472.
the Court has entered default against Defendant, the facts as
alleged by Plaintiff, except those relating to damages, are
taken as true. Plaintiff, a labor organization headquartered
in Washington, dispatched Jenkins to work for Defendant
beginning on January 6, 2015. Complaint ¶¶ 4, 9
(ECF 1). Defendant laid off Jenkins on June 9, 2016, without
having paid Jenkins his wages earned during the previous
three weeks. Complaint ¶ 11. A contract signed by
Plaintiff and Defendant (the “Contract, ”
excerpted at ECF 10-1) obligates Defendant to pay Jenkins his
wages in full on a weekly basis and immediately to pay
Jenkins all amounts due in the event that Jenkins is laid off
during normal office hours. Complaint ¶ 7. The Contract
also obligates Defendant to pay Jenkins penalty wages if
Defendant does not pay Jenkins in accordance with the
Contract. Complaint ¶ 7. Jenkins did not receive full
payment of his regular wages until July 26, 2016, almost two
months late, and he has not received any penalty wages.
Complaint ¶ 13.
Contract contains a four-step procedure for resolving
grievances and disputes between Plaintiff and Defendant. ECF
10-1 at 9-11. As relevant to this lawsuit, steps three and
four require mediation and arbitration, respectively.
Contract art. 11, § 2. On June 21, 2016, Plaintiff
initiated a grievance against Defendant under the Contract.
Complaint ¶ 12. Plaintiff requested a mediator on August
5, 2016. Complaint ¶ 16. Defendant failed to appear at
the mediation scheduled for November 4, 2016, and the
mediator released Plaintiff from the mediation. Complaint
¶ 17. Plaintiff notified Defendant that Defendant's
failure to appear constituted a refusal to mediate. Complaint
¶ 18. On November 8, 2016, Plaintiff acquired a list of
seven arbitrators and provided that list to Defendant.
Complaint ¶¶ 19-20. The Contract required Plaintiff
and Defendant alternatively to strike arbitrators from the
list until only one arbitrator remained, but Defendant failed
to strike any arbitrators after receiving the list of
arbitrators from Plaintiff. Complaint ¶ 20. Plaintiff
notified Defendant on November 10, 2016, that it would pursue
litigation in federal court if Defendant did not participate
in the arbitration process. Complaint ¶ 21. Defendant
responded that it was consulting an attorney about how to
proceed. Complaint ¶ 21. Plaintiff sent Defendant a
final demand to participate in arbitration on November 18,
2016, but Defendant refused to participate. Complaint ¶
23. Plaintiff filed this suit on November 30, 2016. Complaint
Court entered an Order of Default against Defendant on
January 20, 2017. ECF 8. On April 10, 2017, Plaintiff filed a
motion for default judgment against Defendant, seeking
Jenkins' penalty wages, prejudgment interest, an award of
costs and disbursements, and attorney's fees. Plaintiff
requests that the Court retain jurisdiction in order to award
any further costs and attorney's fees incurred as a
result of executing any judgment entered. Defendant did not
respond to Plaintiff's motion for default judgment.
Court finds that the factual allegations in the Complaint
establish that Defendant breached the Contract with Jenkins
by failing to pay Jenkins penalty wages and repudiating the
Contract's mediation and arbitration procedures. The
Court also ...