United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye Chief U.S. District Court Judge.
pending before the Court is Defendant Raymond Probert's
(“Probert”) Motion for Discovery and to Present
Rebuttal Evidence (Dkt. 85), and Motion for Determination of
Joint Liability and to Assert Offset as an Affirmative
Defense (Dkt. 86). Having reviewed the record and briefs, the
Court finds that the facts and legal arguments are adequately
presented. Accordingly, in the interest of avoiding further
delay, and because the Court finds that the decisional
process would not be significantly aided by oral argument,
the Court will address the motion without oral argument.
Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B). For the reasons
outlined below, the Court DENIES both motions.
action relates to an abuse claim between a female minor
(Davis) and an adult, male co-worker (Probert). Davis filed
her Complaint on December 23, 2014, alleging a variety of
state and federal claims against various defendants,
including Probert. Dkt. 1. The claims alleged against Probert
were: Damages for Depravation of Federal Rights under 42
U.S.C. 1983; Tort in Child Abuse under I.C. § 6-1701;
Negligence; Negligent Infliction of Emotional Distress; and
Intentional Infliction of Emotional Distress. Id.
Davis seeks relief in the form of general and special damages
“in an amount to be proven at trial” as well as
costs and attorney fees. Id. at p. 12-13.
March 24, 2015, Probert was served with service of process.
Dkt. 61.1. Davis partially settled her claims against all of
the defendants except Probert. Accordingly, on May 1, 2017,
United States District Judge Edward Lodge dismissed the case
with prejudice as to all defendants except Probert. Dkt. 60.
On August 1, 2017, Davis filed her motion for Entry of
Default against Probert. Dkt. 62. On August 2, 2017, United
States Magistrate Judge Candy Dale granted Davis's motion
and ordered the clerk to enter Probert's default under
Federal Rule of Civil Procedure 55(a). Dkt. 62. Also on
August 2, 2017, Probert's counsel filed a notice of
appearance. Dkt. 63. However, Probert did not move to set
aside the default.
April 4, 2018, Davis filed a second Motion for Entry of a
Default and Request for a Default Judgment Evidentiary
Hearing/Trial. Dkt. 72. On April 10, 2018, the Court granted
Davis's motion and ordered the clerk to enter default.
Dkt. 73. The Order permitted Davis to “present evidence
of her damages” and permitted Probert “to cross-
examine witnesses regarding the mitigation of damages.”
Id. On April 13, 2018, the Clerk entered default as
to Probert. Dkt. 74.
April 27, 2018, Probert filed a response to Davis's
motion for entry of default, arguing that he “is
entitled . . . to present evidence on his own behalf in
mitigation of the damages, and is not circumscribed to simply
cross-examining the damages witnesses that Plaintiff may
choose to call at the damages trial.” Dkt. 75. On June
6, 2018, Davis replied to Probert's Response. Dkt. 76.
7, 2018, Probert filed a motion to strike Davis reply. Dkt.
77. On July 12, 2018, Judge Dale denied Probert's motion
to strike as moot because “a final order had already
issued regarding the entry of default, Defendant's
filing, submitted as a response to the underlying motion, was
procedurally inappropriate, as were the later filings made by
the parties in connection with Defendant's
response.” Dkt. 82 p. 2.
case was then assigned to United State District Judge David
Nye on June 7, 2018 (Dkt. 79), and on January 15, 2019, the
Court issued its order setting a default judgment evidentiary
hearing for May 8, 2019. Dkt. 83. On January 24, 2019, the
Court reset the hearing for May 23, 2019. Probert then filed
the two instant motions.
of the Federal Rules of Civil Procedure states that
“[t]he court may conduct hearings or make
referrals-preserving any federal statutory right to a jury
trial-when, to enter or effectuate judgment, it needs to . .
. determine the amount of damages.” Fed. R. Civ. Pro.
55(b) (emphasis added). Thus, default judgement hearings on
damages may be conducted at the discretion of the Court.
entry of default, the complaint's factual allegations
regarding liability are taken as true, but allegations
regarding the amount of damages must be proven. See
Fed. R. Civ. P 55(b)(2); Geddes v. United Fin.
Group, 559 F.2d 557, 560 (9th Cir.1977). Where, as here,
a plaintiff's damages are not capable of ascertainment
from definite figures contained in documentary evidence or
detailed in affidavits, they require “proving up”
through an evidentiary hearing or some other means.
Dolphin v. Ruiz, 2008 WL 4552940, at *3 (C.D.Cal.
2008) (citing Dundee Cement Co. v. Howard Pipe &
Concrete Prods., 722 F.2d 1319, 1323-24 (7th Cir.1983)).
A plaintiff's burden “in ‘proving up'
damages is relatively lenient.” Elektra Entm't
Grp., Inc. v. Bryant, 2004 WL 783123, at *2 (C.D. Cal.
2004) (citing Greyhound Exhibitgroup, Inc. v. E.L.U.L.
Reality Corp., 973 F.2d 155, 159 (2d Cir. 1992)). Injury
is admitted upon default, but the plaintiff “still must
prove that the compensation sought relates to the damages
that naturally flow from the injuries pled.” Wu v.
Ip, 1996 WL 428342, at *1 (N.D. Cal. 1996) (citing
Greyhound, 973 F.2d at 159).