                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                           JUL 12 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

PAUL HUPP,                                       No. 10-56889

               Plaintiff - Appellant,            D.C. No. 2:08-cv-06927-GW-SS

  v.
                                                 MEMORANDUM *
KEITH D. JONES, Individually, AKA
“Noworries”,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Paul Hupp appeals pro se from the district court’s default judgment in his

diversity action alleging defamation, invasion of privacy, and intentional infliction

of emotional distress under California law. We have jurisdiction under 28 U.S.C.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review for an abuse of discretion. Speiser, Krause & Madole, P.C. v.

Ortiz, 271 F.3d 884, 886 (9th Cir. 2001) (entry of default judgment); Odima v.

Westin Tucson Hotel, 53 F.3d 1484, 1495 (9th Cir. 1995) (damages award). We

affirm.

      The district court did not abuse its discretion in declining to enter default

judgment with respect to Hupp’s invasion of privacy claim because Hupp failed to

establish that he pled a viable claim. See Eitel v. McCool, 782 F.2d 1470, 1471-72

(9th Cir. 1986) (setting forth factors for district court to consider in exercising

discretion to enter default judgment); Aldabe v. Aldabe, 616 F.2d 1089, 1092-93

(9th Cir. 1980) (per curiam) (district court does not abuse its discretion in denying

default judgment with respect to claim that lacks merit); Folgelstrom v. Lamps

Plus, Inc., 125 Cal. Rptr. 3d 260, 265 (Ct. App. 2011) (discussing requirements for

an invasion of privacy claim and explaining that “[t]he tort is proven only if the

plaintiff had an objectively reasonable expectation of seclusion or solitude in the

place, conversation or data source” (citation and internal quotation marks

omitted)).

      The district court did not abuse its discretion in awarding a default judgment

of $1,000 in nominal damages for Hupp’s defamation claim, because Hupp did not

sufficiently prove that he was entitled to a greater amount of damages. See


                                            2                                     10-56889
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per

curiam) (explaining that Fed. R. Civ. P. 55 “gives the court considerable leeway as

to what it may require as a prerequisite to the entry of a default judgment” and that

“upon default the factual allegations of the complaint, except those relating to the

amount of damages, will be taken as true” (citation and internal quotation marks

omitted)); see also Parish v. Peters, 1 Cal. Rptr. 2d 836, 845 (Ct. App. 1991)

(default judgments require proper notice to defendant of the amount of damages

sought, and a general jurisdictional allegation is not sufficient).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, nor arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009) (per curiam).

      Hupp’s remaining contentions are unpersuasive.

      AFFIRMED.




                                            3                                    10-56889
