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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Mineral Park Materials, LLC, 

Defendant.

No. CV-15-08295-PHX-JZB

ORDER 

 Pending before the Court is Plaintiff’s Request to Clerk for Entry of Default 

Judgment. (Doc. 9.) On December 11, 2015, Plaintiff, United States, filed its Complaint 

in this matter to collect debt owed by Defendant. (Doc. 1.) On February 3, 2016, 

Defendant sent a Waiver of Service of Summons to Plaintiff. (Doc. 6.) However, 

Defendant did not file an answer or otherwise respond to Plaintiff’s Complaint. See Fed. 

R. Civ. R. 12(a). The Clerk of Court entered default against Defendant on April 18, 

2016. (Doc. 8.) Plaintiff now moves the Court to enter default judgment. (Doc. 9.) For 

the reasons below, the Court will grant Plaintiff’s request for default judgment.1

I. Background

On December 11, 2015, Plaintiff filed its Complaint in this matter to collect from 

Defendant monetary assessments and penalties imposed by the United States Department 

of Labor, Mine Safety and Health Administration (MSHA). (Doc. 1 ¶ 5.) The 

 

1

 Because Defendant has not appeared or consented to Magistrate Judge jurisdiction, this Court issues an Order on Plaintiff’s pending Request for Entry of Default Judgment. See General Order 11-03. 

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assessments and penalties arise from Defendant’s safety violations under the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq., (the Act) as noted during 

MSHA inspections of Defendant’s sites in Mohave, Arizona. (Id. ¶¶ 9-47.) Plaintiff 

attached to its Complaint as Exhibits thirteen Certificates of Indebtedness, which contain 

sworn statements by the U.S. Department of the Treasury Bureau of the Fiscal Service 

and detail the monetary assessments and penalties issued by MSHA to Defendant as part 

of MHSA’s duty to enforce the Act. (Docs. 1-1 through 1-13.) Each Certificate of 

Indebtedness was signed under penalty of perjury and sets forth the violation date, the 

initial amount assessed, the fees and costs assessed, all payments made by Defendant, and 

the amount still owed. (Id.) 

 On January 7, 2016, Plaintiff sent a Notice of Lawsuit and Request for Waiver of 

Service and Summons to Defendant. (Docs. 4, 6.) On February 3, 2016, Defendant sent 

the signed Waiver to Plaintiff, acknowledging that Defendant had received the Complaint 

and that it agreed to waive formal service of the Summons and Complaint. (Doc. 6.) In 

addition, the Waiver stated that a Judgment could be entered against Defendant if it failed 

to file an answer or motion within 60 days after the Notice was sent, pursuant to Rule 12 

of the Federal Rules of Civil Procedure. (Id.) Defendant, however, did not file an answer 

or otherwise respond to the Complaint. 

 On April 15, 2016, Plaintiff filed a Request to Clerk of Court for Entry of Default 

and Declaration. (Doc. 7.) That same day, Plaintiff sent a copy of the Request to 

Defendant. (Id.) On April 18, 2016, the Clerk of Court entered Default. (Doc. 8.) 

Plaintiff subsequently filed a Request for Entry of Default Judgment and Affidavit of 

Amount Due, and sent a copy to Defendant. (Doc. 9.) On July 7, 2016, the Court 

ordered Plaintiff to submit supplemental briefing because Plaintiff failed to address the 

Eitel factors in its Request for Entry of Default Judgment. (Doc. 10.) 

 On July 20, 2016, Plaintiff filed its Supplemental Briefing. (Doc. 11.) Plaintiff 

requests the Court enter judgment in its favor in the total amount of $52,412.80. This 

amount includes: (1) $37,690.06 in principal; (2) $875.60 in accrued interest as of the 

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date of the Complaint; (3) $452.36 in penalties; (4) $13,304.78 in fees; and (5) $90.00 in 

costs. Plaintiff further requests additional pre-judgment interest accrued until the date of 

Judgment, as well as post-judgment interest. (Doc. 9.) Below, the Court addresses 

Plaintiff’s requests. 

II. Discussion

a. Jurisdiction

“When entry of judgment is sought against a party who has failed to plead or 

otherwise defend, a district court has an affirmative duty to look into its jurisdiction over 

both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). 

Here, Plaintiff, the United States, brings this action to recover fines and penalties 

assessed pursuant to 30 U.S.C. § 801, et seq. Therefore, the Court is satisfied that it has 

subject matter jurisdiction over this action. See 28 U.S.C. § 1345 (“District courts shall 

have original jurisdiction of all civil actions, suits or proceedings commenced by the 

United States, or by an agency or officer thereof expressly authorized to sue by Act of 

Congress.”); 28 U.S.C. § 1355 (“The district courts shall have original jurisdiction, 

exclusive of the courts of the States, of any action or proceeding for the recovery or 

enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under 

any Act of Congress, except matters within the jurisdiction of the Court of International 

Trade under section 1582 of this title.”). 

With regard to personal jurisdiction, Plaintiff’s Complaint alleges that Defendant 

is a corporation conducting business in Arizona. (Doc. 1 ¶¶ 2-4.) Plaintiff sent copies of 

the Complaint and Summons to Defendant’s address in Kingman, Arizona. (Doc. 4.) In 

response, Defendant waived service. (Doc. 6.) Therefore, the Court is satisfied that it 

has personal jurisdiction over Defendant. See Cripps v. Life Ins. Co. of N. Am., 980 F.2d 

1261, 1267 (9th Cir. 1992) (“Personal jurisdiction over a defendant may be acquired in 

one of two ways: by personal service of that defendant or by means of a defendant’s 

‘minimum contacts’ with the jurisdiction.”) 

b. Standard for Entry of Default Judgment

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i. Rule 55 of the Federal Rules of Civil Procedure 

 Rule 55(a) of the Federal Rules of Civil Procedure provides that “[w]hen a party 

against whom a judgment for affirmative relief is sought has failed to plead or otherwise 

defend . . . the clerk shall enter the party’s default.” Once a party’s default has been 

entered, the district court has discretion to grant default judgment. See Fed. R. Civ. P. 

55(b)(2); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (considering lack of 

merit in plaintiff’s substantive claims, the court did not abuse its discretion in declining to 

enter a default judgment). Here, the Clerk of Court has entered Defendant’s default. 

Thus, the Court may now consider Plaintiff’s request for default judgment against 

Defendant. 

ii. The Eitel Factors

 When deciding whether to grant default judgment, the Court considers the 

following “Eitel” factors: “(1) the possibility of prejudice to the plaintiff[;] (2) the merits 

of the plaintiff’s substantive claim[;] (3) the sufficiency of the complaint[;] (4) the sum of 

money at stake in the action; (5) the possibility of a dispute concerning material facts; (6) 

whether the default was due to excusable neglect[;] and (7) the strong policy underlying 

the Federal Rules of Civil Procedure favoring decisions on the merits.” Eitel v. McCool, 

782 F.2d 1470, 1471–72 (9th Cir. 1986). In applying the Eitel factors, “the factual 

allegations of the complaint, except those relating to the amount of damages, will be 

taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977). As 

detailed below, the Court finds that the factors weigh in favor of granting Plaintiff’s 

Request to Clerk for the Entry of Default Judgment against Defendant. 

1. Possible Prejudice to Plaintiff 

 The first Eitel factor weighs in favor of granting Plaintiff’s Request. Plaintiff filed 

its Complaint against Defendant on December 11, 2015. (Doc. 1.) Although Defendant 

initially signed and sent a Waiver of Service of Summons to Plaintiff on February 3, 

2016, it failed to file an answer or otherwise respond to the Complaint as required by 

Rule 12 of the Federal Rules of Civil Procedure. Consequently, Plaintiff filed a Request 

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to Clerk for Entry of Default and Declaration on April 15, 2016, and the Clerk of Court 

entered Default against Defendant on April 18, 2016. (Docs. 7, 8.) Plaintiff sent copies 

of both the Request to Clerk for Entry of Default and the Request to Clerk for Entry of 

Default Judgment to Defendant. (Docs. 7, 9.) Defendant has not appeared or responded 

to Plaintiff’s Complaint, and Plaintiff has no alternative means by which to resolve its 

claims in the Complaint. See Pepsico, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 

(C.D. Cal. 2002). Therefore, Plaintiff will be prejudiced if a default judgment is not 

entered. 

2. Merits of Plaintiff’s Claims and the Sufficiency of the 

Complaint 

 Considering the relationship between the second and third Eitel factors, the Court 

considers the merits of Plaintiff’s substantive claims and the sufficiency of the Complaint 

together. The Ninth Circuit Court has suggested that, when combined, these factors 

require a plaintiff to “state a claim on which the plaintiff may recover.” PepsiCo, Inc., 

238 F. Supp. 2d at 1175 (citation omitted). 

 Pursuant to 30 U.S.C. § 820(a), the Secretary of Labor shall assess civil penalties 

for violations of a mandatory health or safety standard, or violation of any other provision 

of the Act, and each violation can be considered a separate offense. Likewise, § 820(i) 

provides that MSHA has “the authority to assess civil monetary penalties provided in 

[the] Act.” Section 820(b) provides for the assessment of additional civil penalties for 

failure to correct a past violation, for which a citation has already been issued. 

Additionally, 31 U.S.C. § 3711(g)(6), and 31 U.S.C. § 3717(e), allow for the assessment 

of costs and penalties on a delinquent assessment payment. Finally, under 30 U.S.C. § 

820(j), civil penalties owed under the Act may be recovered in “a civil action in the name 

of the United States brought in the United States district court for the district where the 

violation occurred.” 

 Here, Plaintiff’s Complaint alleges Defendant is indebted to Plaintiff for amounts 

totaling $52,412.80. (Doc. 1 ¶¶ 9-47.) Plaintiff alleges that MSHA issued 13 

assessments related to Defendant’s safety violations in Arizona under the Act. (Id.) The 

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Certificates of Indebtedness, sworn by the U.S. Department of the Treasury Bureau of the 

Fiscal Service, state the dates of Defendant’s violations and certify the amounts owed 

under MSHA records. (Docs. 1-1 through 1-13.) Therefore, the Court is satisfied that 

Plaintiff has stated a claim on which it may recover, and the Court finds these factors 

weigh in favor of the entry of default judgment. 

3. Amount of Money at Stake 

Under the fourth Eitel factor, “the court must consider the amount of money at 

stake in relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc., 238 F. Supp. 

2d at 1177. Here, this factor weighs in favor of entering default judgment. As detailed 

below, with the exception of the additional pre-judgment interest Plaintiff requests, 

Plaintiff has satisfactorily proven up its damages in this matter through the Exhibits it 

submitted with its Complaint. (Docs. 1-1 through 1-13.) Further, Plaintiff’s requested 

damages are not extraordinary at $52,412.80, and are consistent with the amount owed as 

stated in the thirteen Certificates of Indebtedness. (Id.) 

4. Possibility of Dispute Concerning Material Facts 

 This factor weighs in favor of entering default judgment. Here, there is little 

possibility of a dispute concerning the material facts as to Defendant. Defendant has not 

made any effort to challenge Plaintiff’s Complaint or otherwise appear in this case, 

despite Defendant acknowledging receipt of the Complaint and Summons and waiving 

service several months ago. 

5. Whether Default Was Due to Excusable Neglect 

 The sixth Eitel factor considers whether the default was due to excusable neglect. 

There is no evidence that Defendant’s failure to appear or otherwise defend was the result 

of excusable neglect. Plaintiff has diligently prosecuted this matter since its inception, 

while Defendant, who received the Complaint and Summons and chose to waive service, 

has failed to defend this action. Thus, the sixth Eitel factor weighs in favor of entering 

default judgment. 

6. Policy Disfavoring Default Judgment 

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 Under the seventh Eitel factor, the Court considers the policy that, whenever 

possible, cases should be tried on the merits. Eitel, 782 F.2d at 1472. The existence of 

Rule 55(b), however, indicates that the preference for resolving cases on the merits is not 

absolute. PepsiCo, Inc., 238 F. Supp. 2d. at 1177. Because Defendant has neither 

appeared nor responded in this action, deciding this case on the merits is “impractical,” if 

not impossible. Id. Thus, the seventh Eitel factor does not preclude the entry of default 

judgment. 

 On balance, the Court finds that the Eitel factors weigh in favor of entering default 

judgment against Defendant. 

c. Damages 

Having found that entry of a default judgment is proper here, the issue becomes 

one of damages. In contrast to the other allegations in the Complaint, allegations 

pertaining to damages are not taken as true. See TeleVideo Sys., Inc. v. Heidenthal, 826 

F.2d 915, 917-18 (9th Cir. 1987). As a result, “Plaintiff is required to prove all damages 

sought in the complaint.” Philip Morris USA Inc. v. Castworld Products, Inc., 219 

F.R.D. 494, 498 (C.D. Cal. 2003). “The plaintiff is required to provide evidence of its 

damages, and the damages sought must not be different in kind or amount from those set 

forth in the complaint.” Amini Innovation Corp. v. KTY Int’l Mktg., 768 F. Supp. 2d 

1049, 1054 (C.D. Cal. 2011); Fed. R. Civ. P. 54(c). “In determining damages, a court can 

rely on the declarations submitted by the plaintiff[.]” Philip Morris USA, 219 F.R.D. at 

498. 

On the issue of damages, Plaintiff submitted thirteen Certificates of Indebtedness, 

all sworn by the U.S. Department of the Treasury Bureau of the Fiscal Service, which 

calculate the damages owed. The Court is satisfied as to the methodology and 

justification for calculating damages, and will award Plaintiff damages of $52,412.80. 

That figure includes: (1) $37,690.06 in principal; (2) $875.60 in accrued interest as of the 

date of the Complaint; (3) $452.36 in penalties; (4) $13,304.78 in fees; and (5) $90.00 in 

costs.

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However, to the extent Plaintiff seeks additional accrued pre-judgment interest 

beyond the $875.60 requested in the Complaint, the Court will deny that request. 

Pursuant to Rule 54(c) of the Federal Rules of Civil Procedure, “[a] default judgment 

must not differ in kind from, or exceed in amount, what is demanded in the pleadings.” 

Here, Plaintiff’s Complaint specifically requests a total of $875.60 in accrued interest on 

the unpaid assessments. (Doc. 1, Prayer for Relief.) Plaintiff’s Complaint does not 

request, or reference, any additional amount of pre-judgment accrued interest. Therefore, 

Plaintiff cannot recover additional pre-judgment interest in a default judgment against 

Defendant. See Landstar Ranger, Inc. v. Parth Enters., 725 F. Supp. 2d 916, 923-924, 

(C.D. Cal. 2010) (“Landstar did not allege entitlement to prejudgment interest in its first 

amended complaint, however. Because plaintiff did not pray for such damages in the 

complaint, and no meaningful notice of the possibility that such amounts would be 

awarded has been given, plaintiff cannot recover prejudgment interest.”). 

Finally, “[u]nder the provisions of 28 U.S.C. § 1961, post-judgment interest on a 

district court judgment is mandatory.” Air Separation, Inc. v. Underwriters at Lloyd’s of 

London, 45 F.3d 288, 290 (9th Cir. 1995) (citing Perkins v. Standard Oil Co., 487 F.2d 

672, 674 (9th Cir. 1973)). The post-judgment interest rate is set “at a rate equal to the 

weekly average 1-year constant maturity Treasury yield, as published by the Board of 

Governors of the Federal Reserve System, for the calendar week preceding . . . the date of 

the judgment.” Landstar Ranger, 725 F. Supp. 2d at 924 (quoting 28 U.S.C. § 1961(a)). 

Therefore, the Court will grant Plaintiff’s request for post-judgment interest, compounded 

annually, at the prevailing rate. 

Accordingly, 

IT IS ORDERED that Plaintiff’s Request to Clerk for Entry of Default Judgment 

(Doc. 9) is granted as provided in this Order.

IT IS FURTHER ORDERED that Judgment be entered for Plaintiff United 

States of America against Defendant in the amount of $37,690.06 in principal, $875.60 in 

accrued interest, $452.36 in penalties, $13,304.78 in fees, and $90.00 in costs, totaling 

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$52,412.80. Said amount shall bear interest from the date of Judgment at the applicable 

federal rate as defined in 28 U.S.C. §1961, compounded annually, until the Judgment is 

paid in full. 

IT IS FURTHER ORDERED that the Clerk of Court is directed to enter 

judgment accordingly and terminate this action. 

DATED this 26th day of October, 2016. 

 

Honorable Stephen M. McNamee

Senior United States District Judge

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