Joe Hand Promotions, Inc. v. Alvarado

Full title: JOE HAND PROMOTIONS, INC., Plaintiff, v. DAVID ALVARADO, LINDA ALVARADO…

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: May 9, 2011

1:10-cv-00907 LJO JLT (E.D. Cal. May. 9, 2011)

Opinion

JOE HAND PROMOTIONS, INC., Plaintiff, v. DAVID ALVARADO, LINDA ALVARADO, ADOLFO ORDAZ JR., SUSANA GARCIA and ANDRES GARCIA, INDIVIDUALLY and d/b/a FRANKIES BAR a/k/a PATRON'S SPORTS BAR, Defendants. No. 1:10-cv-00907 LJO JLT United States District Court, E.D. California. May 9, 2011

          ORDER ADOPTING THE FINDINGS AND RECOMMENDATIONS TO DENY THE MOTION FOR DEFAULT JUDGMENT BY DAVID ALVARADO AND LINDA ALVARADO, (Doc. 36)

          LAWRENCE J. O'NEILL, District Judge.

         David Alvarado and Linda Alvarado, individually and doing business as Frankie's Bar ("the Alvarados") seek the entry of default judgment against Adolofo Ordaz, Jr., Susana Garcia, and Andres Garcia ("the Ordaz/Garcia Group"). (Doc. 32). The Alvarados filed claims to which the Ordaz/Garcia Group failed to respond. On April 21, 2011, the Magistrate Judge recommended to deny the Alvarados default judgment motion. (Doc. 36).

         Granting or denying a motion for default judgment is within the discretion of the Court. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In considering the factors promulgated by the Ninth Circuit Court of Appeals in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986), the Magistrate Judge found that the merits of the Alvarados' claims and the sufficiency of the pleadings, when examined together, weigh against granting default judgment and that the Alvarados' claims for full indemnity and partial indemnity were premature and inapplicable to violations of 47 U.S.C. §§ 533, 605. (Doc. 36 at 5). In addition, the Alvarados failed to plead with sufficient specificity their allegations of fraud and negligent misrepresentation to meet the heightened standards of F.R.Civ.P. 9(b). (Doc. 36 at 5-6). Further, the Magistrate Judge determined the Alvarados failed to establish claims of negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, and a violation of the Cal. Bus. & Prof. Code § 17200. In addition, the Magistrate Judge determined it was in the interest of justice to not enter default judgment against the Ordaz/Garcia Group while their liability to Plaintiff remains undetermined, and there exists the possibility of dispute concerning material facts.

         Although the Alvarados were granted 14 days from April 21, 2011, or until May 5, 2011, to file objections to the Magistrate's Amended Findings and Recommendations, they did not.

         In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the findings and recommendation are supported by the record and by proper analysis.

         Accordingly, IT IS HEREBY ORDERED:

1. The Amended Findings and Recommendations filed April 21, 2011, are ADOPTED IN FULL; and

2. The Alvarados' motion for default judgment (Doc. 32) is DENIED.

         IT IS SO ORDERED.