Opinion
No. 2:15-cv-0563 KJM DB
02-27-2017
PHYLLIS L. YORK, and JAMES B. CARR, Plaintiffs, v. AMERICAN SAVINGS NETWORK, INC., also known as AMERICAN SAVINGS NETWORK, LLC; ANTHONY DIEHL; and ROGER S. MORAN, Defendants.
ORDER
Plaintiffs' motion for default judgment is set for hearing before the undersigned on March 3, 2017. (ECF No. 68.) Examination of plaintiffs' motion, however, reveals that resolution of the motion requires further briefing. In this regard, at issue in this action is a contract. Plaintiffs have attached a copy of that contract to their motion for default judgment. Pursuant to that contract plaintiffs consented to having "the laws of the State of Florida, County of Orange," apply and "deemed the proper venue and exclusive jurisdiction for all purposes . . . ." (ECF No. 68-1 at 5.)
Forum selection clauses are presumptively valid, and should be honored "absent some compelling and countervailing reason." M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12 (1972). Bremen recognized three exceptions that would make enforcement of a forum selection clause unreasonable: (1) "if the inclusion of the clause in the agreement was the product of fraud or overreaching"; (2) "if the party wishing to repudiate the clause would effectively be deprived of his day in court were the clause enforced"; or (3) "if enforcement would contravene a strong public policy of the forum in which suit is brought." Richards v. Lloyd's of London, 135 F.3d 1289, 1294 (9th Cir. 1998) (citing and quoting Bremen, 407 U.S. at 12-13, 15, 18) (internal quotation marks omitted); see also Nedlloyd Lines B.V. v. Superior Court, 3 Cal.4th 459, 464-65 (Cal. 1992) ("In determining the enforceability of arm's-length contractual choice-of-law provisions, California courts shall apply the principles set forth in Restatement section 187, which reflect a strong policy favoring enforcement of such provisions.").
Moreover, plaintiffs' motion asserts that they were damaged "in the amount [of] $70,000 by Defendants' fraud and misrepresentation," and "incurred approximately $10,000 in additional costs." (ECF No. 68 at 5.) Where damages are liquidated, i.e., capable of ascertainment from definite figures contained in documentary evidence or in detailed affidavits, judgment by default may be entered without a damages hearing. Dundee Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983). Here, it is unclear from plaintiffs' filings how plaintiffs arrived at these amounts.
Accordingly, IT IS HEREBY ORDERED that:
1. The March 3, 2017 hearing of plaintiffs' motion for default judgment (ECF No. 68) is continued to Tuesday, April 11, 2017 at 10:00 a.m. in Courtroom No. 27;
2. On or before April 4, 2017, plaintiffs shall file a supplemental memorandum addressing: (1) whether the contract's forum selection clause governs this action; (2) should this action be transferred to venue designated in the parties' contract; and (3) how plaintiffs arrived at the damages calculations addressed above, including any supporting evidence; and //// //// //// ////
3. On or before April 4, 2017, plaintiffs shall file proof of service on the defendants of a copy of this order and a copy of plaintiffs' supplemental memorandum. Dated: February 27, 2017
/s/_________
DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE DLB:6
DB\orders\orders.civil\york0563.cont.mdj6.ord