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Givens v. Oenga

United States District Court, D. Alaska

June 7, 2019

RAYMOND C. GIVENS, Plaintiff,
v.
WALLACE OENGA, Defendant.

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

         Motion for Default Judgment [1]

         Plaintiff Raymond C. Givens moves for the entry of a default judgment against defendant. Copies of all of plaintiff's moving papers have been mailed to defendant by plaintiff at the request of the court.[2] Defendant has not responded to plaintiff's motion. Defendant's default was duly entered by the clerk of court on April 18, 2019.[3]

         After the entry of default against defendant, the well-pleaded factual allegations of plaintiff's complaint as regards liability are taken as true, but the allegations as to the amount of plaintiff's damages must be proved. Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). In exercising its discretion with respect to motions for default judgment, the court considers the seven factors discussed below. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

         (1) Possibility of prejudice to plaintiff.

         As set out in the declaration of plaintiff, [4] defendant has repeatedly entered into agreements with plaintiff concerning the payment of attorney fees earned by plaintiff and owed by defendant. Defendant has repeatedly breached his agreements by which plaintiff's fees should have been paid. In light of defendant's past conduct, only forceful judicial action will put an end to defendant's avoidance of his obligation to plaintiff. Declaratory relief, a money judgment, and a requirement of specific performance are in order to ameliorate the prejudice to plaintiff.

         (2) and (3) Merits of plaintiff's substantive claims; sufficiency of plaintiff's complaint.

         Plaintiff's complaint sets out in detail the history of the attorney fee arrangements between plaintiff and defendant, all of which were expressed in written contracts as detailed in plaintiff's complaint. The relief sought by the instant motion is consistent with the relief prayed for in plaintiff's complaint. Defendant has at all times been on notice that plaintiff was seeking declaratory relief, a money judgment in a specific amount, and an order for specific performance.

         That defendant owes plaintiff the sums set out in plaintiff's complaint is amply established by the series of attorney fee agreements that are before the court.[5]

         (4) Sum of money at stake.

         The parties' 2018 Settlement Agreement regarding attorney fees owed by defendant to plaintiff expressly and unequivocally establishes defendant's obligation to pay plaintiff $42, 323.05 for calendar year 2018, [6] and $43, 538.38 for calendar year 2019.[7] Each of these sums represents 25% of defendant's share of lease rents paid by BP to OST. Defendant owes plaintiff 5% interest on these delinquent payments.[8]

         (5) Possibility of a dispute concerning material facts.

         In light of the fact that defendant and plaintiff have fully documented their original contingent fee contract, as well as the succeeding modifications of that contingent fee agreement, through and including the 2018 Settlement Agreement upon which plaintiff's complaint is based, [9] the court perceives there to be no possibility of a dispute as to material facts. Plaintiff has earned his contingent fee. Plaintiff has repeatedly agreed to modify the fee agreement in fashions which benefitted defendant, yet defendant has breached the 2018 Settlement Agreement by rescinding instructions given by him pursuant to the 2018 Settlement Agreement calling for the BIA and OST to disburse, on an annual basis, 25% of the BP lease rent payments directly to plaintiff.

         (6) Whether the default was due ...


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