2:25-cv-04481•Lynch v. Shrem et al
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Blake Lynch, Plaintiff, v. Joseph Shrem, David Moradi, Select Home Warranty, LLC, Defendants. No. CV 25-04481 PHX DJH (CDB) REPORT AND RECOMMENDATION TO THE HONORABLE DIANE J. HUMETEWA: This matter was referred for a Report and Recommendation regarding Plaintiff’s motion seeking judgment by default at ECF No. 11. On December 4, 2025, Plaintiff filed a pro se complaint alleging Defendant Select Home Warranty, LLC (“Select Home Warranty”) did not honor the terms of a contract. Plaintiff alleges claims for “Contractual Fraud, Neglect, Fraudulent Inducement to Contract,” “willful violations of the terms and conditions of a warranty agreement,” and “violations of the Magnus-Moss Warranty Act …” (ECF No. 1 at 13) (italics in original).1 Plaintiff asserts the Court’s jurisdiction is pursuant to the diversity of the parties, with Defendant Moradi being a resident of New Jersey and Select Home Warranty having a principal place of business in New Jersey; attached to the Complaint is a computer print- out showing Select Home Warranty is a New Jersey corporation and the statutory agent’s 1 Plaintiff presumably refers to the Magnuson-Moss Warranty Act, a federal consumer protection statute enacted in 1975 which established minimum disclosure and content requirements for written consumer product warranties, and also providing consumers with a federal cause of action for breach of warranty in some circumstances. See 50 U.S.C. §§ 2301-2312. Case 2:25-cv-04481-DJH Document 17 Filed 01/26/26 Page 1 of 7
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 address in Florida. (ECF No. 1 at 9). Plaintiff makes no allegation as to the residency of Defendant Shrem. With regard to the amount in controversy, Plaintiff avers that due to Defendants’ bad acts he was “forced to pay for third-party NC technicians and for a new air conditioner out-of-pocket.” (ECF No. 1 at 4). Attached to the Complaint is a communication from Plaintiff to Defendants Moradi and Select Home Warranty, dated October 8, 2025, stating: “Your company violated the MMWA when it made refusals to service my claims, so I was forced to purchase an air conditioning unit in the amount of $7,340.00 plus a modification in the amount of $480.00 for a total of $7,820.00.” (ECF No. 1 at 59). This communication further states: “I am now invoicing you and your company for $100,000.00 for both actual and punitive damages for not only your failure to honor the policy, but your dishonor of Federal Law…” (Id.). The Complaint seeks “compensatory and punitive damages” against Defendants in the amount of $300,000, and “legal costs and fees” and “any further damages, costs and fees the Court deems necessary.” (ECF No. 1 at 4-5). On December 8, 2025, Plaintiff docketed a Certificate of Service stating that Plaintiff had served the Complaint and a summons on Joseph Shrem, David Moradi, and Select Home Warranty on December 4, 2025, by placing copies of the Complaint and a summons “in the United States Mail, postage prepaid,” and sent to the Select Home Warranty corporate address in New Jersey. (ECF No. 6). On December 30, 2025, Plaintiff sought the entry of default against all Defendants, which was entered by the Clerk of the Court on January 5, 2026. (ECF Nos. 7 & 8). Plaintiff filed a motion seeking judgment by default on January 8, 2025, which was referred to the Magistrate Judge for a Report and Recommendation on January 16, 2025. (ECF Nos. 11 & 16). In the motion for judgment by default Plaintiff states: “Pursuant to the Certificate of Dishonor obtained by Plaintiff and dated November 26, 2025, Plaintiff hereby claims Three Hundred Thousand Dollars … or three times the face value of the instrument.” (ECF No. 11 at 2). Case 2:25-cv-04481-DJH Document 17 Filed 01/26/26 Page 2 of 7
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rule 55 does not require the entry of judgment against a defaulting party and the entry of a judgment by default is completely within the Court’s discretion. See, e.g., DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 852 (9th Cir. 2007); Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Default judgments are disfavored because public policy favors the resolution of civil cases on their merits. E.g., NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016); Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). When default judgment is sought against a non-appearing party the 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) (“To avoid entering a default judgment that can later be successfully attacked as void, a court should determine whether it has the power, i.e., the jurisdiction, to enter judgment in the first place.”). The Court has a similar duty with respect to service of process. See Fishman v. AIG Ins. Co., No. 07-cv-0589, 2007 WL 4248867, at *3 (D. Ariz. Nov. 30, 2007) (“Because defendant has not been properly served, the court lacks jurisdiction to consider plaintiff’s motions for default judgment.”). These considerations are “critical because ‘[w]ithout a proper basis for jurisdiction, or in the absence of proper service of process, the district court has no power to render any judgment against the defendant’s person or property unless the defendant has consented to jurisdiction or waived the lack of process.’” Id., quoting Securities & Exch. Comm’n v. Ross, 504 F.3d 1130, 1138-39 (9th Cir. 2007) (“Ross”). A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Rule 4 fo the Federal Rules of Civil Procedure. See, e.g., Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982). Although Rule 4 “is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint,” United Food & Com. Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984) (emphasis added), neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction absent “substantial compliance with Rule 4.” Jackson, 682 F.2d at 1347. See also Benny v. Pipes, Case 2:25-cv-04481-DJH Document 17 Filed 01/26/26 Page 3 of 7
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 799 F.2d 489, 492 (9th Cir. 1986), as amended, 807 F.2d 1514 (9th Cir. 1987); Williams v. Bellagio Hotel & Casino, 728 F. Supp. 3d 1166, 1168 (D. Nev. 2024). Plaintiff failed to serve the Defendants in a manner consistent with Rule 4 of the Federal Rules of Civil Procedure. Rule 4(b)(c)(2) provides that service on an individual or corporate defendant must be effected by someone other than a party to the action, and pursuant to Rule 4(h) service on a corporation may not be made by mail. In the absence of proper service of process, the Court has no power to render any judgment against the Defendants. See Ross, 504 F.3d at 1138-39. Moreover, on January 8, 2026, at the time that he moved for judgment by default in this matter, Plaintiff was aware that service by mail was not valid and that any entry of default against a defendant served by Plaintiff by mail could be vacated for want of proper service. See Lynch v. American Express, 2:25-cv-04671, at ECF No. 7 (D. Ariz. Jan. 6, 2026); Lynch v. Navy Fed. Credit Union, 2:25-cv-4883, at ECF No. 10 (D. Ariz. Jan. 5, 2026). Additionally, Plaintiff’s motion for judgment by default is insufficient. The following factors should be considered when deciding whether default judgment is appropriate: (1) the possibility of prejudice to the plaintiff, (2) the merits of 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 default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. Eitel, 782 F.2d at 1471-72. See also New Gen, LLC, 840 F.3d at 616. The second and third factors, i.e., the merits of the claim and the sufficiency of the complaint, are often analyzed in concert and require the Court to consider whether Plaintiff has adequately stated sufficient facts in support of each element of the claim for relief. See Arizona Bd. of Regents v. Doe, 555 F. Supp. 3d 805, 816 (D. Ariz. 2021), aff’d, 2022 WL 1514649 (9th Cir. May 13, 2022), citing Vietnam Reform Party v. Viet Tan-Vietnam Reform Party, 416 F. Case 2:25-cv-04481-DJH Document 17 Filed 01/26/26 Page 4 of 7
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Supp. 3d 948, 962 (N.D. Cal. 2019). Plaintiff “bears the burden of demonstrating to the Court that the complaint is sufficient on its face and that the Eitel factors weigh in favor of granting default judgment.” Norris v. Shenzhen IVPS Tech. Co., No. 20-cv-01212, 2021 WL 4844116, at *5 (D. Ariz. Oct. 18, 2021). Plaintiff also bears the burden of demonstrating entitlement to the amount of damages he seeks. E.g., Assaf v. Carp, No. 17- cv-01883, 2018 WL 6051514, *1 (C.D. Cal. 2018). Detailed affidavits and supporting exhibits are required to prove the amount of damages if the amount sought is substantial. See Board of Directors of the Motion Picture Indus. Pension Plan v. AnEFX, Inc., No. 2:17–cv–2621, 2018 WL 1635234, at *5 (C.D. Cal. Apr. 2, 2018). When considering the merits and sufficiency of the complaint, the Court must take as true all well-pled factual allegations in the Complaint, except for those related to the amount of Plaintiff’s damages. NewGen LLC, 840 F.3d at 617; Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977); Twentieth Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1070 (D. Ariz. 2006). The Court should not accept as true legal conclusions or facts that are not well-pled, and necessary facts not contained in the pleadings and claims which are legally insufficient are not established by a defendant’s default. See Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1171 (9th Cir. 2012); DIRECTV, Inc., 503 F.3d 854; Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992); Arizona Bd. of Regents, 555 F. Supp. 3d at 815; Solano v. Preciado, 738 F. Supp. 3d 1356, 1362 (D. Or. 2024). The Court should not accept as true information pled as “facts” which are actually only unsupported conclusory allegations, or “facts” that are indefinite, erroneous, contrary to judicially noticed facts, or not susceptible to proof by legitimate evidence. See Solano, 738 F. Supp. 3d at 1362; Gottschalk v. City & Cnty. of San Francisco, 964 F. Supp. 2d 1147, 1165 (N.D. Cal. 2013). See also In re McGee, 359 B.R. 764, 772 (B.A.P. 9th Cir. 2006). Additionally, a motion for judgment by default … should be a fully-fleshed motion that enables the Court to grant relief. Szabo v. Sw. Endocrinology Assocs. PLLC, 2021 WL 3411084, *1 (D. Ariz. 2021). To prevail on a motion, the moving party must apply the law to the facts of the case. LRCiv 7.2(b) (the moving party must “set[] forth the points and authorities relied upon in support of the motion”). A motion for default Case 2:25-cv-04481-DJH Document 17 Filed 01/26/26 Page 5 of 7
- 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 judgment is a case-dispositive motion which requires the Court to undertake an in-depth analysis. Norris, 2021 WL 4844116, at *1. See also Long v. Okopny, No. CV-20-02211, 2021 WL 3410916, at *1 (D. Ariz. July 27, 2021). Plaintiff’s Complaint does not state an adequate factual basis for relief against Defendant Shrem, and arguably does not state an adequate factual basis for his claims for relief against Defendants Moradi and Select Home Warranty. The motion for judgment by default is not a “fully-fledged” pleading applying the law, i.e., the law regarding contracts, fraudulent inducement, and the Magnusson-Moss Warranty Act, to the facts stated in the Complaint, and the motion does not contain citation to any statute or legal opinion. Additionally, neither the Complaint nor the motion for judgment by default (which is in the form of an affidavit) supply an adequate factual basis for the amount of the judgment sought by Plaintiff, or an amount of damages sufficient to invoke diversity jurisdiction. Plaintiff asserts actual damages in the amount of of $7,820, and notes he “invoiced” Defendants for $100,000, and Plaintiff asks the Court to award him $300,000. Although the Court could exercise subject matter jurisdiction over Plaintiff’s claims pursuant to the Magnusson-Moss Warranty Act rather than on the basis of diversity, Plaintiff’s statements, alone, do not meet the requisite standard for establishing he is entitled to the amount of damages he seeks. Accordingly, IT IS RECOMMENDED that the motion at ECF No. 11, asking the Court to enter a judgment of $300,000 in favor of Plaintiff and against Defendants, be denied. IT IS FURTHER RECOMMENDED that the entry of default at ECF No. 8 be vacated. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Pursuant to Rule 72(b)(2), Federal Rules of Civil Procedure, Plaintiff shall have fourteen (14) days from the date of service of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have Case 2:25-cv-04481-DJH Document 17 Filed 01/26/26 Page 6 of 7
- 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party’s right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Dated this 26th day of January, 2026. Case 2:25-cv-04481-DJH Document 17 Filed 01/26/26 Page 7 of 7
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