Opinion
No. CV 16-01903-PHX-DMF
03-28-2017
Nathan Jesus Baeza, Plaintiff(s), v. Compadres Auto Sales, LLC, et al., Defendant(s).
REPORT AND RECOMMENDATION
Plaintiff Nathan Jesus Baeza filed a complaint against several defendants, including Iris Marie Villa (Doc. 1) asserting violations of the Federal Motor Vehicle Information and Costs Savings Act, also known as the Federal Odometer Act, 49 U.S.C. § 32701, et seq. and breach of contract. Plaintiff and Defendant Robles Auto Sales, LLC, consented to magistrate judge jurisdiction pursuant to 28 U.S.C. 636(c) (see Docs. 5, 8), and Defendant Robles Auto Sales, LLC, was later dismissed from this action (Doc. 21).
After service of Defendant Iris Marie Villa on June 22, 2016 (Doc. 10) and Defendant Iris Marie Villa's failure to respond to the complaint, Plaintiff filed an application for entry of default (Doc. 19) and the Clerk entered default on December 22, 2016 (Doc. 22). Because Defendant Iris Marie Villa has not appeared or consented to magistrate judge jurisdiction pursuant to 28 U.S.C. 636(c), undersigned submits this Report and Recommendation to United States District Judge G. Murray Snow. For the reasons below, undersigned recommends that default judgment be entered in favor of Plaintiff and against Defendant Iris Marie Villa as set forth below.
Because Defendant's default has been entered under Federal Rule of Civil Procedure 55(a) (Doc 22), the Court has discretion to grant default judgment against Defendant pursuant to Rule 55(b). See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). The Court considers the following factors in deciding whether to grant default judgment (1) the possibility of prejudice to Plaintiff, (2) the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a dispute concerning material facts, (6) whether default was due to excusable neglect, and (7) the policy favoring a decision on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
Plaintiff's motion for default judgment pertains only to the claim under the Federal Odometer Act, 49 U.S.C. § 32701, et seq. (Doc. 24). Plaintiff is not pursuing a default judgment on the breach of contract claim.
Having considered Plaintiff's motion, Plaintiff's supporting declaration and other materials submitted, which address each of the Eitel factors (Docs. 24, 24-1, 24-2, 25, 26), and having reviewed the well-pled factual allegations in the Complaint (Doc. 1), the Court concludes that default judgment is appropriate in this case. Successful litigants under the Federal Odometer Act, 49 U.S.C. § 32701, et seq. are entitled to three times their actual damages or $10,000, whichever is greater, and to reasonable attorney's fees and costs. See 49 U.S.C. § 32710(a) and (b). Plaintiff seeks statutory damages against Defendant Villa in the amount of $10,000, which is appropriate to the claim.
"A person that violates this chapter or a regulation prescribed or order issued under this chapter, with intent to defraud, is liable for 3 times the actual damages or $10,000, whichever is greater." 49 U.S.C.A. § 32710(a) (West)
"The court shall award costs and a reasonable attorney's fee to the person when a judgment is entered for that person." 49 U.S.C.A. § 32710(b) (West).
Therefore, the Court recommends that Plaintiff's motion be granted to the extent that he seeks $10,000.00 in statutory damages under the Federal Odometer Act, 49 U.S.C. § 32701, et seq. Further, the Federal Odometer Act, 49 U.S.C. § 32710(a), provides that a plaintiff may recover statutory damages of $10,000.00. Because Plaintiff has sufficiently documented his request for attorney's fees and costs and requests a reasonable amount for attorney's fees and costs, the Court also recommends that Plaintiff be awarded $2400 in attorney's fees and $468.00 in costs pursuant the Federal Odometer Act, 49 U.S.C. § 32710(b) and Fed.R.Civ.P. 54(d).
Accordingly,
IT IS RECOMMENDED that Plaintiff's Motion for Default Judgment for the Federal Odometer Act, 49 U.S.C. § 32701, et seq. claim (Doc. 24) be GRANTED and that default judgment in the total amount of $12,868 be entered in favor of Plaintiff and against Defendant Iris Marie Villa on the Federal Odometer Act claim asserted in the Complaint (Doc. 1). Specifically, it is recommended that Plaintiff be awarded $10,000.00 in statutory damages, $2400 in attorney's fees, and $468.00 in costs.
IT IS FURTHER RECOMMENDED that the judgment shall bear post-judgment interest at the statutory rate as set forth under 28 U.S.C. § 1961.
IT IS FURTHER RECOMMENDED that Plaintiff take nothing on the breach of contract claim against Defendant Iris Marie Villa.
This recommendation is not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 6 and 72. Thereafter, the parties have fourteen days within which to respond to the objections. Failure to file timely objections to the Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in / / / / / / / / / an order or judgment entered pursuant to the recommendation. See Fed. R. Civ. P. 72.
Dated this 28th day of March, 2017.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge