Zurfluh v. Toyota Financial Services

[5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA [7] NICHOLAS GREGORY ZURFLUH, CASE NO. C24-5285 BHS [8] Plaintiff, ORDER 9 v. 10 TOYOTA FINANCIAL SERVICES, 11 Defendant. [12] 13 THIS MATTER is before the Court on pro se plaintiff Nicholas Gregory Zurfluh’s 14 renewed motion for a default judgment. Dkt. 9. The Court denied Zurfluh’s prior request 15 because he had not shown, by affidavit or otherwise, that he had served defendant Toyota 16 Financial Services under the Federal Rules of Civil Procedure; he had instead simply 17 mailed a copy of his complaint. Dkts. 3, 5, 7. 18 Zurfluh now contends that he has properly served Toyota Financial Services by 19 personally serving on its registered agent in Texas a “complaint, and request for 20 injunction; notice of request for documents; notice of recession [sic] of transaction; notice 21 of default.” Rule 4(c)(1) requires, however, that a plaintiff properly serve “a summons 22 with a copy of the complaint.” There remains no evidence that Zurfluh has properly 1 served a summons on the defendant. He is therefore not entitled to default under Rule 2 55(a), much less a default judgment under Rule 55(b). 3 Upon entry of default, this Court takes as true the factual allegations in the non4 defaulting party’s complaint, except those related to the amount of damages. Fed. R. Civ. 5 P. 8 (b)(6); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915 , 917–18 (9th Cir. 1987) 6 (quotation omitted). Nonetheless, “[e]ntry of default does not entitle the non-defaulting 7 party to a default judgment as a matter of right.” Warner Bros. Entm’t Inc. v. Caridi, 346 8 F. Supp. 2d 1068, 1071 (C.D. Cal. 2004) (citation omitted). The “general rule [is] that 9 default judgments are ordinarily disfavored. Cases should be decided upon their merits 10 whenever reasonably possible.” Eitel, 782 F.2d at 1472 (citing Peno v. Seguros La 11 Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985)). Whether to grant a default judgment 12 lies within the district court’s discretion. Id. One of the primary factors the court 13 evaluates is the “merit of the plaintiff’s substantive claim.” Eitel v. McCool, 782 F.2d 14 1470 , 1471–72 (9th Cir. 1986). 15 Zurfluh’s substantive claim is that in March of 2024, he rescinded his December 16 11, 2023 purchase of a 2024 Camry at Toyota of Puyallup. Dkt. 1 at 4; Dkt. 4 at 2. He 17 contends he “exercised his right of recission under 15 U.S.C. § 1635 .” He seeks to have 18 his “account closed and the title released in my good name.” Dkt. 1 at 4. [19] 15 U.S.C. § 1635 facially does not apply to the purchase of an automobile; it 20 applies to consumer credit transactions secured by the purchaser’s “the principal 21 dwelling”—his residence. 15 U.S.C. § 1635 (a). And even if it applied, the statute plainly [22] 1 requires the buyer to exercise his right to rescind with “three days” of the purchase. 15 2 U.S.C. § 1635 (f). Zurfluh appears to have waited more than three months. 3 The motion for default judgment is DENIED. 4 IT IS SO ORDERED. 5 Dated this 29th day of July, 2024. A [7] BENJAMIN H. SETTLE [8] United States District Judge