United States District Court, D. Oregon
Corinna Spencer-Scheurich Kate Suisman NORTHWEST WORKERS'
JUSTICE PROJECT D. Michael Dale AW OFFICES OF D. MICHAEL DALE
Attorneys for Plaintiff
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE.
Arturo Villegas Rubi brings this wage-related action against
Defendants Dynamic Change Inc. (“Dynamic Change”)
and Trevor Leske, an individual who allegedly owns Dynamic
Change. Plaintiff brings claims under the federal Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201, as
well as Oregon's wage and hour statutes. Plaintiff alleges
that Defendants failed to pay Plaintiff the agreed-upon wage
for all the work he performed for Defendants. Plaintiff also
brings a common law breach of contract claim.
filed a motion for default judgment against both Defendants.
The court grants the motion and awards a judgment of $13,
filed this case on September 28, 2017 and Defendants failed
to answer. On February 5, 2018, this Court entered an order
of default as to Mr. Leske. Feb. 5, 2018 Op., ECF 8. On March
5, 2018, Plaintiff amended the Complaint by removing a second
corporate defendant and making minor factual alterations.
First Am. Compl., ECF 9. On October 26, 2018, this Court
entered an order of default as to Dynamic Change. Oct. 26,
2018 Op., ECF 18.
First Amended Complaint (“FAC”) superseded the
original complaint. See Lacey v. Maricopa Cty., 693
F.3d 896, 925 (9th Cir. 2012) (explaining that once a
plaintiff files an amended complaint, the original pleading
“no longer serves any function”). The FAC was
properly served on Dynamic Change. See Oct. 26, 2018
Op. at 9. And, while it does not appear that Mr. Leske was
served the FAC, “[n]o service is required on a party
who is in default for failing to appear” so long as the
pleading does not “assert a new claim for
relief.” Fed.R.Civ.P. 5(a)(2). The Court reviewed the
original Complaint and the FAC and concludes that no
additional claims for relief were asserted against Mr. Leske.
Thus, this Court grants Plaintiff default judgment against
both Defendants based on the FAC.
entry of default, all well-pleaded factual allegations of the
complaint are taken as true, except those allegations
relating to the amount of damages. See Geddes v. United
Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977) (“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.”);
NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 617 (9th
Cir. 2016) (same).
the district court's decision whether to enter a default
judgment is a discretionary one. DIRECTV, Inc. v. Hoa
Huynh, 503 F.3d 847, 852 (9th Cir. 2007) (citing
Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980)). “[D]efault judgments are ordinarily
disfavored.” Eitel v. McCool, 782 F.2d 1470,
1472 (9th Cir. 1986). In exercising its discretion, the court
may consider the following factors:
(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 ...