Gerow v. United States Department of Justice et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Eric Gerow,
Plaintiff,
v.
Anthony Falcone; Tom Blackwell;
Blackwell Automotive Inc.; and Ray Lata,
Defendants.
No. CV-23-1059-PHX-DGC
ORDER
Plaintiff Eric Gerow moved for entry of default and default judgment against
Defendant Ray Lata. Doc. 188. The Court denied the motion. Doc. 197. Plaintiff has
filed an objection (Doc. 200), which the Court construes as a motion for reconsideration.
The Court will grant the motion in part, direct the Clerk of Court to enter Defendant Lata’s
default, and give Plaintiff until December 5, 2025 to file a motion for default judgment
against Lata.
I. Entry of Default Under Rule 55(a).
On July 21, 2025, the Court entered an order authorizing Plaintiff to serve Defendant
Lata by mailing the operative complaint, summons, and a copy of the order to Lata at his
last known business or residential address. Doc. 183 at 1. Federal Rule of Civil Procedure
55(a) provides for entry of default where “a party against whom a judgment for affirmative
Case 2:23-cv-01059-DGC Document 204 Filed 11/14/25 Page 1 of 3

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relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit
or otherwise[.]”
Plaintiff asserted that he mailed the operative complaint and other documents to
Defendant Lata on July 24, 2025. Doc. 188 ¶ 16. But Plaintiff provided no proof of service
showing that the purported service was properly made. See Fed. R. Civ. P. 4(l)(1) (“Unless
service is waived, proof of service must be made to the court.”). The Court therefore denied
the request for entry of default against Defendant Lata. Doc. 197 at 1-2.
Plaintiff has now provided proof that he served Defendant Lata on July 24, 2025 by
mailing the appropriate documents via the United States Postal Service to Lata’s last known
address (1210 Forest Hills Drive, Wilmington, NC 28403). Docs. 200 ¶ 25, 200-1 at 1; see
Fed. R. Civ. P. 4(l)(3) (“Failure to prove service does not affect the validity of service. The
court may permit proof of service to be amended.”). The Court will direct the Clerk to
enter Defendant Lata’s default. See Fed. R. Civ. P. 55(a).
II. Default Judgment Under Rule 55(b).
Pursuant to Rule 55(b)(1), Plaintiff sought default judgment against Defendant Lata
in the “sum certain” amount of $42,000,508.24. Doc. 188 ¶¶ 6, 21. Plaintiff sought $2
million for each of the seventeen counts asserted against Defendant Lata, with damages on
the two racketeering counts trebled to $6 million, plus $508.24 in costs. Doc. 188-1 ¶¶
9-11. Because most of the claims are not subject to an award of sum certain damages, and
because Plaintiff presented no evidence to determine the amount of damages to which he
may be entitled, the Court denied the request for default judgment. Doc. 197 at 2-3.
The Court also explained that even if Defendant Lata’s default is entered, that does
not automatically entitle Plaintiff to a court-ordered judgment. Id. The rule in this Circuit
is “that default judgments are ordinarily disfavored. Cases should be decided upon their
merits whenever reasonably possible.” Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir.
1986).
Plaintiff has not shown that the Court erred in denying the request for default
judgment. Plaintiff’s request for reconsideration in this regard will be denied.
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Plaintiff states that he intends to move for a hearing on default judgment. Doc. 200
¶ 47. The Court will determine whether a hearing is necessary after Plaintiff files a proper
motion for default judgment against Defendant Lata. See Fed. R. Civ. P. 55(b)(2)(B) (the
court “may” conduct a hearing to determine the amount of damages); Valenzuela v.
Regency Theater, No. CV-18-2013-PHX-DGC, 2019 WL 5721062, at *2 (D. Ariz. Nov. 5,
2019) (“[T]he Court ‘may determine there is sufficient evidence [of damages] either based
upon evidence presented at a hearing or upon a review of detailed affidavits and
documentary evidence.’”) (citation omitted).
Plaintiff shall have until December 5, 2025 to file a motion for default judgment
against Defendant Lata pursuant to Rule 55(b)(2). The motion must address the factors to
be considered in deciding whether default judgment is appropriate: (1) the possibility of
prejudice to the plaintiff, (2) the merits of the claims, (3) the sufficiency of the complaint,
(4) the amount of money at stake, (5) the possibility of factual disputes, (6) whether default
is due to excusable neglect, and (7) the policy favoring decisions on the merits. See Eitel,
782 F.2d at 1471-72. The motion must also include any evidence Plaintiff has regarding
the amount of damages he seeks. As the Court previously explained, a conclusory affidavit
asserting the amount of damages sought is not sufficient. See Docs. 188-1, 197 at 3.
IT IS ORDERED:
1. Plaintiff’s motion for reconsideration (Doc. 200) is granted in part and
denied in part as set forth in this order.
2. The Clerk is directed to enter Defendant Lata’s default.
3. Plaintiff shall have until December 5, 2025 to file a motion for default
judgment against Defendant Lata.
Dated this 13th day of November, 2025.
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