Opinion
CV-23-00022-TUC-RM
01-31-2024
Julian Abraham Bustamante, Plaintiff, v. Tony Taylor, et al., Defendants.
ORDER
HONORABLE ROSEMARY MARCNJEZ, UNITED STATES DISTRICT JUDGE
Plaintiff Julian Abraham Bustamante, who is currently confined in the Arizona State Prison Complex, filed a one-count pro se Complaint on January 11, 2023, alleging that Defendants used excessive force against him during an incident in the Pima County Jail. (Doc. 1.) On screening under 28 U.S.C. § 1915A(a), the Court ordered Defendants Tony Taylor, Stephen Perko, and Manh Vu to answer the excessive force claim alleged against them, and the Court dismissed the remaining Defendants. (Doc. 11.) Pima County representative Lisa Strole accepted service on Defendant Taylor's behalf on May 9, 2023. (Doc. 15.) The Process Receipt and Return forms for Perko and Vu indicate the United States Marshal's Service has been unable to serve those defendants at the addresses provided by Plaintiff. (Docs. 14, 16, 36, 37.)
Defendant Taylor did not timely respond to Plaintiff's Complaint, and the Clerk of Court entered default against him on September 27, 2023. (Doc. 25.) Pending before the Court is Plaintiff's Motion for Entry of Default Judgment. (Doc. 28.) ....
I. Motion for Entry of Default Judgment Against Defendant Taylor
“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). The plaintiff may thereafter apply for entry of a default judgment. Fed.R.Civ.P. 55(b). The Court may conduct a hearing if necessary to enter or effectuate judgment. Fed.R.Civ.P. 55(b)(2). In determining whether to grant a default judgment, courts consider “(1) the possibility of prejudice to the plaintiff, (2) the merits of [the] 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).
A. Eitel Factors
The first Eitel factor favors default judgment. Despite being served with process, Taylor has not answered or otherwise responded to the Complaint. If default judgment is not entered, Plaintiff would lose the right to judicial resolution of his claim against Taylor.
The Court has already determined that Plaintiff's Complaint states a Fourteenth Amendment excessive force claim against Taylor. (See Doc. 11 at 6.) Where a complaint states a plausible claim for relief under the pleading standards of Federal Rule of Civil Procedure 8, the second and third Eitel factors favor default judgment. Valenzuela v. Regency Theater, No. CV-18-2013-PHX-DGC, 2019 WL 5721062, at *1 (D. Ariz. Nov. 5, 2019) (citing Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978)).
The fourth Eitel factor also favors default judgment. In his Complaint, Plaintiff sued multiple defendants for excessive force and sought a total of $115,000 in compensatory damages for his injuries. (Doc. 1 at 7.) In an Affidavit filed in support of his Application for Entry of Default, Plaintiff indicates he seeks damages of $30,000 against Taylor. (Doc. 24.) The amount of damages at issue is not “too large or unreasonable in relation to defendant's conduct.” Mayer v. Redix, No. ED CV-12-515-DMG(E), 2014 WL 4258125, at *7 (C.D. Cal. Aug. 26, 2014) (internal quotation marks omitted).
In his Motion for Default Judgment, Plaintiff purports to increase his compensatory damages request to $900,000 and to add a request for punitive damages in the amount of $1,200,000. (Doc. 28 at 3.) However, Federal Rule of Civil Procedure 54(c) provides that a “default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Accordingly, in a default judgment, Plaintiff may not obtain compensatory damages exceeding what he demanded in his Complaint, and he may not obtain punitive damages.
“Upon entry of default, all well-pleaded facts in the complaint are taken as true, except those relating to damages.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002). Given Taylor's complete failure to respond or appear and the Clerk's entry of default against him, there is no indication in the current record of a possible dispute concerning material facts. Nor is there any indication in the current record that Taylor's default was due to excusable neglect. Accordingly, the fifth and sixth Eitel factors favor default judgment. The policy favoring decisions on the merits supports denying default judgment, but it does not sufficiently outweigh the other Eitel factors, which as a whole support granting default judgment. Accordingly, the Court will enter default judgment against Taylor on the issue of liability.
B. Damages
A complaint's factual allegations relating to the amount of damages are not taken as true on default. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). A plaintiff seeking default judgment must present “an evidentiary basis for the damages sought.” Cement & Concrete Workers Dist. Council Welfare Fund. v. Metro Found. Contractors Inc., 699 F.3d 230, 234 (2d Cir. 2012). Federal Rule of Civil Procedure 55(b)(2)(B) allows the court to conduct hearings to determine the amount of damages.
In his Motion for Default Judgment, Plaintiff avers that he continues to suffer ringing in his ears, blurred vision, memory loss, extreme daily headaches, nightmares, and difficulty walking as a result of Defendant's conduct. (Doc. 28 at 2.) However,
Plaintiff has not submitted any documentary evidence in support of his requested compensatory damages. Furthermore, it is unclear from the Complaint which portion of Plaintiff's alleged injuries are attributable to Taylor and which are attributable to Perko and Vu. Accordingly, the Court finds that an evidentiary hearing is necessary under Rule 55(b)(2)(B) to determine the amount of damages.
The Court will order that Plaintiff appear at the evidentiary hearing via video teleconference. If Plaintiff seeks to appear in person, he may file a motion for issuance of writ of habeas corpus ad testificandum.
If Plaintiff intends to subpoena any witnesses to testify at the evidentiary hearing, he must comply with General Order 18-19, which states:
[A]ny self-represented litigant who wishes to serve a subpoena must file a motion with the Court for issuance of the subpoena. The motion must (1) be in writing, (2) attach a copy of the proposed subpoena, (3) set forth the name and address of the witness to be subpoenaed and the custodian and general nature of any documents requested, and (4) state with particularity ie reasons for seeking the testimony and documents. The assigned judge shall determine whether the requested subpoena shall issue. Issuance of the subpoena shall not preclude any witness or person subpoenaed, or other interested party, from contesting the subpoena.
Any motion for issuance of subpoenas under General Order 18-19 must be filed sufficiently in advance of the evidentiary hearing to allow the Court to resolve the motion and to allow the United States Marshal's Service to serve the subpoenas, if the Court determines they should issue.
II. Defendants Perko and Vu
Despite multiple extensions of the deadline for serving Defendants Perko and Vu (see Doc. 22 at 2; Doc. 30 at 2-3), Plaintiff has been unable to provide the United States Marshal's Service with addresses at which those defendants can be served (see Docs. 14, 16, 36, 37). The extended deadline for serving Defendants Perko and Vu expired on December 26, 2023. (See Doc. 30 at 2-3.) The Court has repeatedly warned Plaintiff that Defendants Perko and Vu may be dismissed if not timely served. (See Doc. 11 at 8; Doc. 30 at 2-3.)
Although “an incarcerated pro se plaintiff proceeding in forma pauperis is entitled to rely on the U.S. Marshal for service of the summons and complaint,” it is still the plaintiff's responsibility to “provide[] the necessary information to help effectuate service[.]” Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990). If a defendant is not timely served, “the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed.R.Civ.P. 4(m).
The Court will order Plaintiff to show cause why Defendants Perko and Vu should not be dismissed for failure to serve.
IT IS ORDERED that default judgment as to liability is entered against Defendant Tony Taylor and in favor of Plaintiff Julian Abraham Bustamante.
IT IS FURTHER ORDERED that an evidentiary hearing on damages is set for March 21, 2024, at 1:30 p.m., before the Honorable Rosemary Marquez, in Courtroom 5A of the United States District Court for the District of Arizona, Evo A. DeConcini U.S. Courthouse, 405 W. Congress Street, Tucson, AZ 85701.
IT IS FURTHER ORDERED that Plaintiff shall appear at the evidentiary hearing via video teleconference. If Plaintiff seeks to appear in person, he may file a motion for issuance of writ of habeas corpus ad testificandum within fifteen (15) days of the date this Order is filed.
IT IS FURTHER ORDERED that the Clerk of Court shall mail Plaintiff a blank Subpoena to Testify at a Hearing or Trial in a Civil Case (Form AO 88).
IT IS FURTHER ORDERED that, within fifteen (15) days of the date this Order is filed, Plaintiff shall show cause why Defendants Perko and Vu should not be dismissed for failure to serve. Plaintiff is warned that if he fails to respond to this Order, or if his response does not show good cause for an additional extension of the time limit for service under Rule 4(m) of the Federal Rules of Civil Procedure, Defendants Perko and Vu will be dismissed.