United States District Court, D. Oregon, Pendleton Division
SWIFT FINANCIAL, LLC, fka Swift Financial Corporation, a Delaware limited liability company, Plaintiff,
ALABAR CONSTRUCTION, INC., an Oregon corporation; and JOHN A. FENTON, an individual, Defendants.
FINDINGS AND RECOMMENDATIONS
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE
Swift Financial, LLC brings this action to confirm an
arbitration award. An arbitrator for the American Arbitration
Association (“AAA”) made the award August 19,
2018, in favor of plaintiff and against defendants Alabar
Construction, Inc. (“Alabar”) and John A. Fenton.
AAA No. 01-18-0001-6731; Laurick Nov. 20, 2018, Decl., Ex. 1
(Docket No. 2-1) (the “Arbitration Award”).
Plaintiff has filed a Petition for Order to Confirm
Arbitration Award. (Docket No. 1). Defendants have not
appeared or otherwise taken any action in this matter. The
Court entered default on January 29, 2019. (Docket No. 14).
Plaintiff has moved for default judgment. (Docket No. 8).
following reasons, the Court should GRANT plaintiff's
Motion for Default Judgment (Docket No. 8) and GRANT
plaintiff's Petition for Order to Confirm Arbitration
Award (Docket No. 1).
Court takes these facts from the Arbitration Award as
incorporated into plaintiff's Complaint and as
uncontested due to defendants' default. See Khoja v.
Orexigen Therapeutics, Inc., 899 F.3d 988, 1005 (9th
Cir. 2018); Geddes v. United Fin. Grp., 559 F.2d
557, 560 (9th Cir. 1977).
August 28, 2017, plaintiff entered into a Future Receivables
Sale Agreement with Alabar in which plaintiff sold to Alabar
$89, 175.00 of its future receivables for the sum of $75,
000.00. Arbitration Award ¶ 1; see also Laurick
Nov. 20, 2018, Decl., Ex. 2 (Docket No. 2-2) (the “Sale
Agreement”). Fenton also guaranteed the obligations on
the sale. Id., at 2; Arbitration Award ¶ 2. On
October 24, 2017, Alabar had insufficient funds for the
required remittances under the Sale Agreement and ceased
making payments, in violation of the Agreement. Id.
¶¶ 4, 6. Alabar thus defaulted on the Sales
Agreement, and Fenton also failed to honor his guaranty
obligations. Id. ¶¶ 7-8.
result, defendants owe plaintiff $77, 205.70 as an advance
balance due under the Sales Agreement, plus non-sufficient
funds charges of $35.00, for a total of $77, 240.70.
Id. ¶ 9. The Sales Agreement also requires that
defendants reimburse plaintiff for reasonable attorney's
fees incurred in seeking enforcement of the Agreement, and
plaintiff incurred $1, 192.00 in attorney's fees.
Id. ¶ 10; see also Laurick Nov. 20,
2018, Decl., Ex. 2, at 2-3 (Docket No. 2-2). The Arbitration
Award thus found that defendants Alabar and Fenton were
jointly and severally liable for the amount of $77, 240.70,
id. ¶ A, and for attorney's fees in the
amount of $1, 192.00, id. ¶ B. The Award also
awarded plaintiff AAA fees of $3, 000, plus arbitrator
compensation of $1, 172.50, and so defendants were also
jointly and severally liable for $4, 172.50. Id.
¶ C. In the aggregate, these total $82, 605.20. See
also Laurick Jan. 11, 2019, Decl. ¶¶ 3-5
(Docket No. 9).
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. 1987).
Whether to Grant Default Judgment
Court entered default against defendants on January 29, 2019.
(Docket No. 14). Despite plaintiff's failure to discuss
the Eitel factors, the Court now analyzes those