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Johnson v. Granite

July 8, 2009

SCOTT JOHNSON, PLAINTIFF,
v.
MARK D. GRANITE, AND DAVID SEUNG KIM, DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

On May 6, 2009, this court heard plaintiff's motion for default judgment, pursuant to Fed. R. Civ. P. 55(b), against defendant David Seung Kim.*fn1 Plaintiff Scott Johnson, an attorney, appeared at the hearing and represented himself. No appearance was made on behalf of defendant David Seung Kim (hereafter, "Kim").

The only other defendant, Mark D. Granite, doing business as Original Granites restaurant, was dismissed from this action on January 8, 2009. See Dckt. No. 5 and further docket entry dated January 8, 2009. Defendant Kim is the owner of the subject property. See Compl., Exh. 1.

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.

BACKGROUND

The complaint, made pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., was filed on November 20, 2008. A certificate of service, filed February 10, 2009, demonstrates that the summons and complaint were personally served on defendant Kim, on January 21, 2009. Dckt. No. 7.

On February 18, 2009, pursuant to plaintiff's request, the Clerk of Court entered the default of defendant Kim. Dckt. Nos. 8, 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. 8. 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 March 17, 2009, Dckt. No. 12, which was served by mail on the same day upon defendant Kim. Dckt. No. 12, at p. 5.

DISCUSSION

Process has been served upon defendant Kim, who 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 defendant Kim, 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. Defendant David Seung Kim is the owner of the subject property, a restaurant with a parking lot, located at 6749 Rio Linda Blvd, Rio Linda, California, which 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 August 2008, plaintiff visited the subject property to dine at the restaurant but, due to the architectural barriers of "properly configured disabled parking space(s) including the lack of a van accessible disabled parking space [no disabled parking at all], accessible route, accessible restrooms, accessible dining area, accessibility signage, striping, and accessible cashier/service ...


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