Mohamed Lasheen v. Embassy of Egypt , 625 F. App'x 338 ( 2015 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    DEC 18 2015
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MOHAMED E. LASHEEN,                              No. 13-17143
    Plaintiff - Appellee,              D.C. No. 2:01-cv-00227-LKK-
    EFB
    v.
    EMBASSY OF THE ARAB REPUBLIC                     MEMORANDUM*
    OF EGYPT; et al.,
    Defendants - Appellants,
    and
    THE LOOMIS COMPANY,
    Defendant.
    Appeal from the United States District Court
    for the Eastern District of California
    Lawrence K. Karlton, Senior District Judge, Presiding
    Argued and Submitted December 8, 2015
    San Francisco, California
    Before: KOZINSKI, BYBEE, and CHRISTEN, Circuit Judges.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    The estate of Mohamed Lasheen filed this action claiming that defendants-
    appellants improperly denied Lasheen medical benefits under an ERISA plan
    sponsored by the Egyptian Embassy.1 The defendants appeal the district court’s
    entry of default judgment against them, arguing that: (1) the district court erred in
    entering default judgment against them; (2) the district court erred in declining to
    grant the defendants a hearing on damages; and (3) the district court erred in
    awarding attorneys’ fees. We have jurisdiction under 
    28 U.S.C. § 1291
    . We
    AFFIRM.
    1. Default judgment
    The decision to grant or deny entry of default judgment is reviewed for
    abuse of discretion. Aldabe v. Aldabe, 
    616 F.2d 1089
    , 1092 (9th Cir. 1980).
    Under the Foreign Sovereign Immunities Act, “[n]o judgement by default shall be
    entered . . . against a foreign state . . . unless the claimant establishes his claim or
    right to relief by evidence satisfactory to the court.” 
    28 U.S.C. § 1608
    (e). “This
    provision . . . codifies in the FSIA context the long-standing presumption that due
    1
    In Lasheen v. Embassy of the Arab Republic of Egypt, 485 F. App’x 203
    (9th Cir. 2012), we previously determined that the defendants were not entitled to
    sovereign immunity because Lasheen’s claims fell within the commercial activity
    exception to the Foreign Sovereign Immunities Act.
    2
    process requires plaintiffs seeking default judgments to make out a prima facie
    case.” Moore v. United Kingdom, 
    384 F.3d 1079
    , 1090 (9th Cir. 2004).
    The district court did not abuse its discretion in entering default judgment
    against the defendants given their sporadic participation in the litigation, frequent
    failures to appear, and ultimate failure to appear at a mandatory December 2005
    status conference. The district court properly applied the factors discussed in Eitel
    v. McCool, 
    782 F.2d 1470
    , 1471–72 (9th Cir. 1986), in determining whether to
    enter default judgment. Moreover, the defendants cannot demonstrate that their
    default was due to excusable neglect. See, e.g., Meadows v. Dominican Republic,
    
    817 F.2d 517
    , 521–22 (9th Cir. 1987) (finding that the default resulted from the
    defendants’ culpable conduct where the Dominican Republic was “aware of
    relevant federal law . . . [and had been] fully informed of the legal consequences of
    failing to respond”); see also TCI Grp. Life Ins. Plan v. Knoebber, 
    244 F.3d 691
    ,
    698 (9th Cir. 2001) (noting that a defendant’s conduct is culpable “where there is
    no explanation of the default inconsistent with a devious, deliberate, willful, or bad
    faith failure to respond”), overruled on other grounds by Egelhoff v. Egelhoff ex
    rel. Breiner, 
    532 U.S. 141
    , 147 (2001). Finally, the plaintiff’s complaint alleged
    sufficient information to make out a prima facie case that he was entitled to recover
    3
    due benefits under 
    29 U.S.C. § 1132
    (a)(1)(B), satisfying the requirements for entry
    of default judgment against a foreign sovereign.
    2. Damages
    The district court awarded Lasheen $200,000 in damages, the maximum
    lifetime benefit amount available under Lasheen’s benefits plan. The defendants
    argue that the district court erred because it did not hold an evidentiary hearing on
    damages, and that Lasheen did not sufficiently demonstrate that he was entitled to
    the lifetime benefit.
    Upon entry of default, a plaintiff is required to prove the amount of his
    damages, because neither the default nor the allegations in the complaint can
    establish the amount of damages. See Geddes v. United Fin. Grp., 
    559 F.2d 557
    ,
    560 (9th Cir. 1977). The district court may determine the amount of damages
    without an evidentiary hearing where “the amount claimed is a liquidated sum or
    capable of mathematical calculation.” Davis v. Fendler, 
    650 F.2d 1154
    , 1161 (9th
    Cir. 1981). Here, the district court properly relied on affidavits and medical
    records submitted by the plaintiff indicating that the cost of Lasheen’s needed
    treatment was over $250,000. No evidentiary hearing was required because the
    damages were clearly ascertainable based on the records Lasheen submitted. The
    district court did not abuse its discretion.
    4
    3. Attorneys’ fees
    Finally, the defendants contest both the district court’s decision to award
    attorneys’ fees and the amount of fees awarded. ERISA gives the district court
    discretion to grant attorneys’ fees and costs to a prevailing party. 
    29 U.S.C. § 1132
    (g)(1). We review for abuse of discretion. See McConnell v. MEBA Med. &
    Benefits Plan, 
    778 F.2d 521
    , 525 (9th Cir. 1985); Hummell v. S. E. Rykoff & Co.,
    
    634 F.2d 446
    , 452 (9th Cir. 1980). The district court considered the appropriate
    factors articulated in Hummell, 
    634 F.2d at 453
    , governing the decision to award
    attorneys’ fees. Moreover, in the absence of special circumstances, it is an abuse
    of discretion for the district court to deny a prevailing plaintiff attorneys’ fees.
    McConnell, 778 F.2d at 525. The defendants have demonstrated no such special
    circumstances here. Nor have the defendants demonstrated that either the hourly
    rate or the amount of hours worked by Lasheen’s attorneys in pursuing this case
    was unreasonable, given the delays the defendants caused in this litigation. The
    district court did not abuse its discretion.
    AFFIRMED.
    5