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Johnson v. Z and D Management Inc.

July 7, 2009

SCOTT JOHNSON, PLAINTIFF,
v.
Z AND D MANAGEMENT INC., DBA FRUITRIDGE CHIROPRACTIC OFFICE, POMPILIO GATAIN, AND ILEANA GAITAN, DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

On March 11, 2009, this court heard plaintiff's motion for default judgment, pursuant to Fed. R. Civ. P. 55(b), against defendant Z and D Management Inc., doing business as Fruitridge Chiropractic Office.*fn1 Plaintiff Scott Johnson, an attorney, appeared at the hearing and represented himself. No appearance was made on behalf of defendant Z and D Management Inc.

The other remaining defendants, Pompilio Gatain and Ileana Gaitan, owners of the subject property, see Compl., Exh. 3, filed an answer to the complaint on September 11, 2008, Dckt. No. 8.

Upon review of the motion, supporting documents, plaintiff's oral argument, and good cause appearing, the court makes the following findings, and recommends that plaintiff's motion be granted subject to resolution of all claims against the remaining defendants.

BACKGROUND

The complaint, made pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., was filed on July 23, 2008. A certificate of service, filed September 10, 2008, demonstrates that the summons and complaint were served on defendant Z and D Management Inc. (hereafter "Z and D"), on August 14, 2008, by personal service upon the receptionist (Rosalla Chavarra) for defendant's agent for service of process (Darrin King).*fn2 Dckt. No. 7.

On November 3, 2008, pursuant to plaintiff's request, the Clerk of Court entered the default of defendant Z and D. Dckt. Nos. 9, 10. Plaintiff's request for entry of default provides that defendant "has failed to appear, plead, defend, reply, or otherwise respond to the Complaint." Dckt. No. 9. While defendant was not served with plaintiff's request for entry of default or the Clerk's entry of default, these omissions come within the exception for service upon a defaulting party. See Fed. R. Civ. P. 5(a)(2) ("No service is required on a party who is in default for failing to appear").

Plaintiff filed the instant motion for default judgment on February 4, 2009, Dckt. No. 13, which was served by mail on the same day upon defendant's agent for service of process, Darrin King. Id., at p. 5.

DISCUSSION

Process has been served upon defendant Z and D, which has not appeared in this action. See Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal jurisdiction).

Entry of default pursuant to Fed. R. Civ. P. 55(a) effects defendant's admission of the well-pled factual allegations of the complaint, except those relating to the amount of damages. See Fed. R. Civ. P. 8(b)(6) ("An allegation--other than one relating to the amount of damages-- is admitted if a responsive pleading is required and the allegation is not denied"); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977), Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976).

Pursuant to the default of Z and D, the court finds that the complaint states the following claims for which relief can be granted, specifically:

1. Plaintiff is a "person with a disability" and "physically handicapped person," pursuant to 42 U.S.C. § 12102(2)(A), and 28 C.F.R. § 36.104. Compl. at ¶ 1.

2. Fruitridge Chiropractic Office (Z and D) is a medical service provider with a parking lot located in a retail center at 4441 Fruitridge Road, Sacramento, California, and is a public accommodation as defined by 42 U.S.C. § 12181(7), and 28 C.F.R. § 36.104. Compl. at ¶ 2.

3. In February 2008, plaintiff visited Z and D for services but, due to the architectural barriers of "the correct number and type of properly configured disabled parking space(s) including the lack of a van accessible disabled parking space, accessible route, accessible entrance, accessibility signage and striping," plaintiff was prevented ...


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