United States District Court, D. Oregon, Pendleton Division
CORRECTED OPINION AND ORDER
PATRICIA SULLIVAN United States Magistrate Judge
DariTech, Inc., brings this action for breach of contract and
related claims against defendant Greg Te Velde, formerly
doing business as Willow Creek Dairy, and doing business as
Lost Valley Farm, to recover the unpaid balance on dairy farm
equipment and services that plaintiff provided defendant.
Defendant has not appeared or otherwise taken any action in
this matter. The Court entered default on March 6, 2018.
(Docket No. 9). Plaintiff filed a Motion for Default Judgment
(Docket No. 10), on which the Court, finding the Motion
deficient, ordered supplemental briefing (Docket No. 14).
Plaintiff then filed an Amended Motion for Default Judgment.
(Docket No. 15). On April 30, 2018, plaintiff filed a Notice
that defendant filed for Chapter 11 bankruptcy on April 27,
2018, in the Eastern District of California. (Docket No. 18).
On August 28, 2018, the Court stayed this matter pending the
bankruptcy proceedings. (Docket No. 19). On August 31, 2018,
plaintiff filed a Notice that the Bankruptcy Court had
approved relief from the automatic stay of bankruptcy.
(Docket No. 20).
November 15, 2018, plaintiff filed an Unopposed Motion for
Entry of Judgment Consistent with Stipulation between Parties
and Order of Bankruptcy Court. (Docket No. 22). Pursuant to
the stipulation between the parties, the parties move for
this Court to enter Judgment in favor of plaintiff and
against defendant in the amount of $396, 271.47. The Court
GRANTS plaintiff's motion.
is a dairy equipment company that manufactures, supplies, and
installs dairy farm equipment. Compl. ¶ 7 (Docket No.
1); Suppl. DeWaard Decl. ¶ 2 (Docket No. 16). Defendant
had been developing and improving property in Morrow County,
Oregon, to operate a dairy farm. Compl. ¶ 6; Suppl.
DeWaard Decl. ¶ 3.
March 2016, defendant ordered various pieces of dairy farming
equipment from plaintiff. Compl. ¶ 8; Suppl. DeWaard
Decl. ¶ 4. Defendant agreed to pay $862, 952 for the
equipment. Id. Defendant made a 10% down payment in
March 2016, with 70% of the agreed price to be paid upon
delivery, and the remaining 20% to be paid within 30 days of
completion of the order. Id. Plaintiff completed
installation of the order in July 2017. Compl. ¶ 9;
Suppl. DeWaard Decl. ¶ 5. Defendant then ordered
additional equipment and services, in the amount of $342,
993.16, which plaintiff delivered and provided. Compl. ¶
10; Suppl. DeWaard Decl. ¶ 6.
has invoiced defendant and demanded payment for the supplied
equipment, labor, service, and parts, but defendant has
failed to pay the full balance owed. Compl. ¶ 11; Suppl.
DeWaard Decl. ¶ 7. As of March 6, 2018, defendant had
paid plaintiff $820, 236.54, leaving a balance owed to
plaintiff of $376, 146.06, including interest. Id.;
see Compl., Exs. 1 & 2; Suppl. DeWaard Decl.
¶ 7, Exs. 1 & 2.
was served with the Summons and Complaint in this action by
substitute service on January 29, 2018, with follow-up
mailing completed on January 30, 2018. (Docket No. 4). Proof
of service was filed February 5, 2018. Id. On
February 21, 2018, defendant's attorney contacted
plaintiff's attorney and informed her that defendant did
not dispute the Complaint's allegations, did not intend
to contest the matter, and agreed that default judgment was
appropriate. Schleicher Decl. ¶ 4 (Docket No. 7).
Defendant failed to appear, plead, or otherwise defend this
action. Id. ¶ 5.
an entry of default against an unresponsive defendant, a
court may grant default judgment in plaintiff's favor and
award damages. Fed.R.Civ.P. 55(b)(2). “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). In exercising its discretion, the
court considers the following factors, as articulated in
Eitel v. McCool:
(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 1470, 1471-72 (9th Cir. 1986). Upon entry of
default, the non-responding party is deemed to have admitted
the factual allegations against him, except allegations of
damages. Fed.R.Civ.P. 8(b)(6); Geddes v. United Fin.
Group, 559 F.2d 557, 560 (9th Cir. 1977). Thus, the
court accepts plaintiff's pleaded facts as true, but
plaintiff must prove damages. TeleVideo Sys.,
Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.
Whether to Grant ...