Opinion
2:15-cv-01443-JAD-PAL
06-21-2016
Kelly Services Inc. Plaintiff v. A2Z Global Staffing Inc., Alexis J. O'Keefe, Allan J. O'Keefe, Susan M. O'Keefe, and Daven Ricketts,, Defendants
Order Denying Motion for Default Judgment Without Prejudice
[ECF No. 24]
Kelly Services Inc. sued AZ Global Staffing Inc. and four of its employees and agents, Daven Ricketts and Allan, Alexis, and Susan O'Keefe, claiming that A2Z's failure to perform under a secondary-staffing agreement—and the individual defendants' intentional misrepresentations about that performance—cost Kelly nearly $600,000. Defaults have been entered against all defendants except Allan O'Keefe, who has been dismissed from this action without prejudice. Kelly now moves for a default judgment against the defaulted defendants. Because Kelly failed to address the Eitel factors in its motion, I deny the motion without prejudice.
ECF Nos. 1, 31.
ECF No. 27.
ECF Nos. 34, 48.
ECF No. 41.
I find this motion suitable for disposition without oral argument. L.R. 78-1.
Background
On November 9, 2012, Kelly entered into a secondary-supplier agreement with A2Z under which Kelly agreed to pay A2Z to supply employees to Kelly's client, Gray Bar Electric. A2Z agreed to provide wages, benefits, and worker's-compensation benefits to these employees, maintain appropriate worker's-compensation insurance coverage for these employees, and to defend Kelly and Gray Bar against any claims brought by these employees.
ECF No. 1 at 2.
Id.
Id.
In August 2014, an employee who was employed at Gray Bar under the A2Z-Kelly staffing agreement was allegedly injured on the job and then filed a worker's-compensation claim against Kelly in South Carolina. Kelly requested that A2Z defend it per the terms of their agreement. A2Z's failure to respond to Kelly's requests prompted Kelly to investigate A2Z's insurance coverage. Kelly discovered that A2Z failed to procure the required worker's-compensation coverage and that A2Z employees had falsified proof of that coverage. Kelly requests $648,254.20 in damages, which is the amount of money it claims to have spent to defend the worker's-compensation lawsuit in South Carolina and the money it paid to A2Z under the staffing agreement.
Id. at 4.
Id.
Id.
Id.
ECF No. 41 at 3.
Discussion
A. Default judgment under FRCP 55
When the clerk has entered a default against a party, Rules 54(b) and 55 of the Federal Rules of Civil Procedure permit the court to enter a default judgment. The Ninth Circuit in Eitel v. McCool set forth seven factors that govern the district court's decision whether to enter a default judgment: (1) potential prejudice to the plaintiff; (2) the merits of the plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the amount of money at stake in the action; (5) the potential disputes as to material facts; (6) whether the default was due to excusable neglect; and (7) the strong federal policy favoring adjudications on the merits.
Eitel v. McCool, 782 F.2d at 1470, 1471 (9th Cir. 1986); Trustees of the Bricklayers & Allied Craftworkers Local 13 Defined Contribution Pension Trust for S. Nev. v. Tumbleweed Dev., Inc., 2013 WL 143378, at *2 (D. Nev. Jan. 11, 2013) (citing Eitel).
See Eitel, 782 F.2d at 1471-72.
Except for the amount of money at stake, Kelly's motion does not address the Eitel factors. Kelly has thus left me without the guidance and information I need to determine whether a default judgment is warranted. I therefore deny Kelly's motion without prejudice to its ability to file a new motion that addresses the Eitel factors and explains why these factors warrant the judgment that Kelly requests.
See, e.g., Rimlinger v. Shenyang 245 Factory, 2014 WL 2527147 (D. Nev. June 4, 2014); Neumont University, LLC v. Little Bizzy, LLC, 2014 WL 2112938 (D. Nev. May 20, 2014); U.S. S.E.C. v. Brandonisio, 2013 WL 5371626 (D. Nev. Sept. 24, 2013); Trustees of Teamsters Local 631 Sec. Fund for Southern Nevada v. Knox Installation-Dismantling and Services, Inc., 2013 WL 4857897 (D. Nev. Sept. 9, 2013). --------
Conclusion
Accordingly, IT IS HEREBY ORDERED that Kelly's motion for entry of default judgment [ECF No. 41] is DENIED without prejudice.
Dated this 21st day of June, 2016.
/s/_________
Jennifer A. Dorsey
United States District Judge