1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 COMPAGNIE MARITIME MARFRET, Case No. 2:16-CV-1211 JCM (BNW)

8 Plaintiff(s), ORDER

9 v.

10 NATURAL WATERS, INC., et al.,

11 Defendant(s).

12 13 Presently before the court is Plaintiff Compagnie Maritime Marfret’s (“plaintiff”) motion 14 for default judgment against defendant Samuel Rowe (“Rowe”). (ECF No. 46). Defendant has 15 not filed a response, and the time to do so has passed. 16 I. Background 17 Plaintiff is a steamship company that operates vessels dealing in “worldwide trade.” (ECF 18 No. 1). In April 2016, one of plaintiff’s vessels was about to transit the Panama Canal. Id. 19 According to plaintiff, steamship companies hire local agents in Panama to facilitate the payment 20 of canal dues. Id. Accordingly, plaintiff contacted a company called CB Fenton Co. S.A. 21 (“Fenton”) to act as its agent for the trip. Id. 22 Plaintiff alleges that defendants Rowe and Larry Lucas (“Lucas”), the owners and operators 23 of defendant Natural Waters, Inc. (“Natural Waters”) (collectively, “defendants”), surreptitiously 24 monitored the email traffic between plaintiff and Fenton detailing the transfer of funds to pay the 25 canal dues. Id. Allegedly, just before plaintiff was about to make the payment to Fenton, plaintiff 26 received an email which “appeared to come from Fenton” advising that it had changed its account 27 information and the canal dues in the amount of “$225,325.12 should be sent to their alternative 28 account in the United States at Bank of America.” Id. 1 Plaintiff alleges that this email communication came from defendants, posing as Fenton, 2 which induced it to wire the $225,325.12 in canal dues to Natural Waters’ account at Bank of 3 America. Id. Thereafter, when plaintiff realized that defendants’ email communication was 4 illegitimate, it attempted to cancel the wire payment through its bank and through Bank of 5 America. Id. However, Bank of America informed plaintiff that it could not reverse the wire 6 payment. Id. 7 Accordingly, plaintiff filed the instant suit against defendants on May 31, 2016. Id. 8 Plaintiff asserts three causes of action against defendants: (1) fraudulent misrepresentation; (2) 9 conversion; and (3) replevin/claim and delivery. Id. After plaintiff filed the instant action, on June 10 28, 2016, defendants returned $141,000.00 to plaintiff. Id. Accordingly, defendants allegedly 11 retain $84,325.12 of the wrongfully acquired funds. Id. 12 The instant motion is plaintiff’s second motion for default judgment against Rowe. See 13 (ECF No. 15). Plaintiff filed its first motion for default judgment against defendants on November 14 11, 2016. Id. Before the court ruled on the motion for default judgment, Rowe filed a motion to 15 set aside clerk’s entry of default on December 7, 2016. (ECF No. 21). 16 Thereafter, the court granted plaintiff’s motion for default judgment as to Lucas and 17 Natural Waters for their failure to appear in this action. (ECF No. 35). However, the court granted 18 Rowe’s motion to set aside clerk’s entry of default and denied plaintiff’s motion for default 19 judgment as to Rowe, accordingly. Id. 20 In its order, the court found that Rowe had “identified a plausible defense in this case,” 21 which the Ninth Circuit has deemed a sufficient reason to set aside clerk’s entry of default. Id. 22 (citing United States v. Signed Pers. Check No. 730 of Yubran S. Mesle,

(9th Cir. 23 2010)). In light of Rowe’s asserted defense and the Ninth Circuit’s well-established precedent that 24 cases should be adjudicated on the merits whenever possible, the court found good cause to set 25 aside clerk’s entry of default against Rowe.

(citing Falk v. Allen,

(9th Cir. 26 1984)). 27 Now, plaintiff brings its second motion for default judgment against Rowe for his 28 continued failure to defend against this action. (ECF No. 46). 1 II. Legal Standard 2 Obtaining a default judgment is a two-step process. Eitel v. McCool,

, 1471 3 (9th Cir. 1986). First, “[w]hen a party against whom a judgment for affirmative relief is sought 4 has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the 5 clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Federal Rule of Civil Procedure 6 55(b)(2) provides that “a court may enter a default judgment after the party seeking default applies 7 to the clerk of the court as required by subsection (a) of this rule.” 8 The choice whether to enter a default judgment lies within the discretion of the court. 9 Aldabe v. Aldabe,

(9th Cir. 1980). In the determination of whether to grant 10 a default judgment, the court should consider the seven factors set forth in Eitel: (1) the possibility 11 of prejudice to plaintiff if default judgment is not entered; (2) the merits of the claims; (3) the 12 sufficiency of the complaint; (4) the amount of money at stake; (5) the possibility of a dispute 13 concerning material facts; (6) whether default was due to excusable neglect; and (7) the policy 14 favoring a decision on the merits. 782 F.2d at 1471–72. In applying the Eitel factors, “the factual 15 allegations of the complaint, except those relating to the amount of damages, will be taken as true.” 16 Geddes v. United Fin. Grp.,

, 560 (9th Cir. 1977); see also Fed. R. Civ. P. 8(d). 17 III. Discussion 18 As a preliminary matter, plaintiff’s motion requests an award of fees and costs in addition 19 to default judgment in the amount of $84,325.12 against Rowe. (ECF No. 46). The court finds 20 that plaintiff has not sufficiently addressed the required LR 54-14 factors and will therefore defer 21 consideration of an award of attorneys’ fees until an appropriate motion is filed. See LR 54-14(b). 22 The court will now address whether plaintiff is entitled to default judgment against Rowe. 23 After considering the Eitel factors, the court finds good cause to grant plaintiff’s motion 24 for default judgment. Plaintiff will be prejudiced if default judgment is not entered, as plaintiff 25 will be left without any legal remedy to recover the stolen funds from Rowe. See Eitel,

at 1471–72. Further, there is no possibility of a dispute concerning the material facts of this case, 27 as Rowe had failed to file an answer to plaintiff’s complaint and there is no indication in the record 28 that Rowe’s continued default is due to excusable neglect. See id. 1 Moreover, defendants have admitted wrongdoing by returning a portion of the money they stole from plaintiff and the court has already entered default judgment against Lucas and Natural Waters. (ECF No. 35). Therefore, the Eitel factors dealing with the merits of the claims and the 4) sufficiency of the complaint weigh in favor of plaintiff. 5 In light of the foregoing, the court will enter default judgment in the amount of $84,325.12 6 | in favor of plaintiff and against Rowe. 7| IV. Conclusion 8 Accordingly, 9 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff's motion for 10 | default judgment (ECF No. 46) be, and the same hereby is, GRANTED. 11 IT IS FURTHER ORDERED that the clerk of court shall enter default judgment in favor 12 | of plaintiff and against Rowe in the amount of $84,325.12 and close the case, accordingly. 13 DATED July 30, 2019. 14 □□□ ©. Atala 15 UNITED\STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge _4-