1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 USA TRUCK, INC., Case No. 1:20-cv-00158-DAD-JDP 10 Plaintiff, FINDINGS AND RECOMMENDATIONS

THAT PLAINTIFF’S MOTION FOR

11 v. DEFAULT JUDGMENT (AS AMENDED) BE

GRANTED AND THAT ALL DOE

12 JUGAN EXPRESS INC., et al., DEFENDANTS BE DISMISSED 13 Defendants. OBJECTIONS DUE IN 14 DAYS 14 ECF No. 10 15 ORDER VACATING ALL OTHER

OUTSTANDING DATES

16 17 Plaintiff USA Truck, Inc., proceeds in this action under the Carmack Amendment to the 18 Interstate Commerce Act, 49 U.S.C. § 14706, which governs the federal liability of freight 19 carriers. Plaintiff claims that defendant Jugan Express accepted a written request to ship 20 $34,210.26 in wine from California to Nevada, but never completed the shipment—and that, in 21 fact, the shipment was lost or stolen while in defendant’s possession. See ECF No. 1 at 3; ECF 22 No. 10 at 3. Jugan Express has not answered the complaint or otherwise appeared. On March 25, 23 2020, plaintiff moved for default judgment in the amount of $39,852.73. See ECF No. 10. The 24 court held a hearing with plaintiff’s counsel on May 4, 2020, during which counsel requested that 25 an additional $212.50 in fees and $66 in interest be added to the total, reflecting the accrual of 26 additional interest as well as additional work associated with the hearing. Counsel also requested 27 that the court dismiss all Doe defendants, should the court grant the motion for default judgment 28 1 against Jugan Express. Because defendant was properly served, and because relevant 2 discretionary factors point in favor of the default judgment, we recommend that plaintiff’s motion 3 be granted for the full, amended amount—$40,131.23—and that the Doe defendants be 4 dismissed. 5 DISCUSSION 6 Federal Rule of Civil Procedure 55(b)(2) allows a court to enter judgment against a party 7 that has defaulted. While the decision to do so is “discretionary,” Aldabe v. Aldabe, 616 F.2d 8 1089, 1092 (9th Cir.1980), it is guided by several factors. As a preliminary matter, the court must 9 first assess the adequacy of service on the party against whom the default judgment would be 10 entered. See Cranick v. Niagara Credit Recovery, Inc., No. 1:13-CV-671 LJO GSA, 2014 WL 11 325321, at *1 (E.D. Cal. Jan. 28, 2014); see also Omni Capital Int’l., Ltd. v. Rudolf Wolff & Co., 12 484 U.S. 97, 104 (1987) (“[B]efore a federal court may exercise personal jurisdiction over a 13 defendant, the procedural requirement of service of summons must be satisfied.”). If service was 14 sufficient, the court may then consider a number of factors, including possible prejudice to the 15 plaintiff; the merits of plaintiff’s claim; the sufficiency of the complaint; the sum of money at 16 stake; the possibility of a factual dispute; whether the default was potentially due to excusable 17 neglect; and the general policy that cases be decided on the merits. See Eitel v. McCool, 782 F.2d 18 1470, 1471-72 (9th Cir.1986). In addition, “the factual allegations of the complaint, except those 19 relating to the amount of damages, will be taken as true.” Geddes v. United Fin. Group, 559 F.2d 20 557, 560 (9th Cir. 1977). 21 Here, service on defendant was appropriate, and the clerk of court properly entered a 22 default on March 24, 2020. See ECF No. 9. Federal Rule of Civil Procedure 4(e) allows service 23 to occur by “following state law for serving a summons . . . in the state where the district court is 24 located or where service is made,” or by “delivering a copy of [the summon and complaint] to an 25 agent authorized by appointment or by law to receive service of process.” California law, in turn, 26 permits substituted service by “leaving a copy of the summons and complaint” at the “usual 27 mailing address” of the entity to be served “with the person who is apparently in charge thereof, 28 and by thereafter mailing a copy of the summons and complaint by first-class mail.” Cal. Code 1 Civ. P. § 415.20(a). Here, a registered California process server personally left the summons and 2 complaint with the person apparently in charge at the office of Jugan Express. ECF No. 7 at 1. 3 Copies of both documents were also mailed to Jugan Express, and more than ten days have 4 passed since that mailing. Id. at 2. The court thus finds that defendant Jugan Express was 5 properly served. 6 The Eitel factors also point in favor of granting default judgment. Generally, a plaintiff 7 has no means other than a default judgment to recover against a defaulting defendant and would 8 be prejudiced if judgment were not entered. See Moroccanoil, Inc. v. Allstate Beauty Prods., 847 9 F. Supp. 2d 1197, 1200-01 (C.D. Cal. 2012). Plaintiff’s complaint also states a claim that— 10 accepting the allegations therein as true—appears meritorious. That claim is straightforward: 11 “defendants accepted a written request from USA Truck . . . to transport, as a motor carrier, a 12 shipment of wine from Ripon, California to Las Vegas, Nevada; and thereafter received said 13 shipment for transportation.” ECF No. 1 at 3. Plaintiff alleges, however, that defendant “failed to 14 satisfy such obligations” and “refused to deliver said shipment to the intended consignee,” 15 resulting in “a total loss of the shipment in the sum of $34,210.26.” Id. The Carmack 16 Amendment makes clear that the carrier “providing transportation or service” is “liable to the 17 person entitled to recover under the receipt or bill of lading.” 49 U.S.C. § 14706(a)(1); see also 18 Pac. Indem. Co. v. Atlas Van Lines, Inc., 642 F.3d 702, 710 (9th Cir. 2011) (“The Carmack 19 Amendment imposes strict liability upon receiving carriers and delivering carriers.”). The 20 amended amount requested in judgment—$40,131.23—appears to reasonably reflect the sum of 21 damages, interest, costs, and attorney’s fees. ECF No. 10 at 2. Finally, given that Jugan Express 22 was properly served, there is no evidence that the company’s failure to appear is due to excusable 23 neglect. Cf., Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 24 2001). 25 Eitel does make clear that “[c]ases should be decided upon their merits whenever 26 reasonably possible.” 782 F.2d at 1472. But, standing alone, this policy is insufficient to deny 27 default judgment against a defendant that has failed to appear and defend itself. PepsiCo, Inc. v. 28 California Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). With no appearance from WAS MEAL VET to PIO VIO AY TT

1 | the defendant, a decision on the merits is simply unworkable. 2 | FINDINGS AND RECOMMENDATIONS 3 We recommend that plaintiff's motion for a default judgment be granted in the amount of 4 | $40,131.23, and that all Doe defendants be dismissed. 5 These recommendations will be submitted to the U.S. district judge presiding over the 6 | case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within 14 days of the service of the 7 | findings and recommendations, the parties may file written objections to the findings and 8 || recommendations with the court and serve a copy on all parties. That document must be 9 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 10 | district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 11 | ORDER 12 All other outstanding dates and deadlines in this in this case are hereby vacated. 13 4 IT IS SO ORDERED. 15 ( Caan Dated: _ May 4, 2020 16 UNI STATES MAGISTRATE JUDGE 17 18 | No. 205. 19 20 21 22 23 24 25 26 27 28