United States District Court, D. Oregon, Eugene Division
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
to Federal Rules of Civil Procedure 55(b), Plaintiff Adan
Delgado Rojas (“Plaintiff”) moves to enter
default judgment against Defendants Dale McCleary and
Willie's Woodworking, LLC (the “LLC”)
(collectively, “Defendants”). For the reasons set
forth below, this Court should grant Plaintiff's motion
for default judgment and enter judgment accordingly.
brought this action on June 26, 2018, and Defendants received
personal service on July 23, 2018. ECF Nos. 1, 5. On November
19, 2018, Plaintiff filed his Motion for Entry of Default
pursuant to Federal Rule of Civil Procedure 55(a). ECF No. 8.
The motion was served on Defendants by electronic mail and
United States mail on November 13 and 19, 2018, respectively.
ECF No. 10. Defendants have failed to file any responsive
pleadings or otherwise defend within 60 days of receiving the
waiver request, and that failure is shown by declaration.
See Johnson Decl. ¶ 7 (ECF No. 9). The clerk
granted Plaintiff's Motion for Entry of Default on
November 20, 2018. ECF No. 11. On Plaintiff's Motion for
Default Judgment, the Court conducted a hearing for
accounting. ECF Nos. 12, 15, & 25. Prior to the hearing,
Plaintiff filed his Amended Memorandum and Declaration in
Support of Plaintiff's Motion for Entry of Default
Judgment. ECF Nos. 21, 22.
alleges the following. Plaintiff was hired by Defendants in
January 2016 to work as a carpenter at an hourly rate of
$25.00. Compl. ¶¶ 1, 3, & 32 (ECF No. 1). At
all material times, Defendants operated a commercial and
residential custom woodworking and finish carpentry business.
Id. at ¶ 24. The LLC's annual gross sales
volume was in excess of $500, 000. Id. at ¶ 26.
Plaintiff was classified as a W-2 employee. Id. at
¶¶ 4, 12. Defendants directed and controlled
Plaintiff's work and assigned him tasks. Id. at
¶ 2. These tasks were either directly or indirectly in
the interest of Defendants. Id. at ¶ 27. As a
condition of employment, Plaintiff was required to pay all
fuel, automobile insurance, and maintenance expenses.
Id. at ¶ 35. Plaintiff claims he was unpaid for
regular working hours, overtime, and business expenses from
June 2016 to October 2016 and from April 2017 to May 2017.
Id. at ¶¶ 9, 39, & 42. He seeks relief
under the Fair Labor Standards Act (“FLSA”) and
Oregon wage and hour laws. See Id. at 1.
defendant must file a responsive pleading within twenty-one
(21) days of being served or within sixty (60) days if the
defendant has timely waived service under Fed.R.Civ.P. 4(d).
Fed.R.Civ.P. 12(a)(1)(A). If the defendant fails to file a
responsive pleading or defend (as shown by affidavit or
otherwise), the clerk must enter the defendant's default.
district court has broad discretion to enter a default
judgment. See Fed. R. Civ. P. 55(b); Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980);
Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917 (9th Cir. 1987) (per curiam) (“Rule 55 gives the
court considerable leeway as to what it may require as a
prerequisite to the entry of a default judgment.”).
considering an entry of a default judgment the courts
(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.
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986) (citation omitted).
considering a default judgment, the court may generally take
the factual allegations of the complaint as true, other than
those relating to the amount of damages. TeleVideo
Sys., 826 F.2d at 917-18 (citation omitted);
see Fed. R. Civ. P. 8(b)(6). The court is not bound
to admit facts that are not well-pleaded or admit conclusions
of law. DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847,
854 (9th Cir. 2007) (quoting Nishimatsu Constr. Co. v.
Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975)). A claim is well-pleaded “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A hearing or referral may be held to
conduct an accounting, determine damages, establish the
veracity of allegations through evidence, or investigate any
other matter. Fed.R.Civ.P. 55(b)(2).
Entry of Default Judgment
Court examines the seven factors laid out in Eitel
and generally takes the factual allegations as true other
than those relating to damages.
Factors 1, 5, and 7
Court found in the previous Opinion and Order, refusal to
grant default judgment would be prejudicial to Plaintiff
because Plaintiff would have no other avenue to collect the
unpaid regular and overtime wages. Op. and Order 4 (ECF No.
15). There does not appear to be a material dispute
concerning the hourly rate of $25 and Defendants' failure
to compensate Plaintiff. Id. at 5. Upon
Plaintiff's submission of an accounting sufficient enough
to enter a default judgment, the seventh ...