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NOT FOR PUBLICATION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.
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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
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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.
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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.
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