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Johnson v. Finks

November 2, 2009

SCOTT N. JOHNSON, PLAINTIFF,
v.
THOM FINKS, DBA SUNDANCE COMPUTERS, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

This case was referred to the undersigned pursuant to Eastern District of California Local Rule 72-302(c)(19) and 28 U.S.C. § 636(b)(1) for hearing on plaintiff's motion for entry of default judgment against defendant Thom Finks. On October 7, 2009, a hearing on the motion was held. Plaintiff Scott Johnson, an attorney, appeared at the hearing and represented himself. No appearance was made on behalf of defendant. For the reasons that follow, and as stated on the record at the hearing, the court recommends that plaintiff's application for entry of default judgment be granted.

I. BACKGROUND

Plaintiff initiated this action on May 8, 2009, alleging violations of the Americans with

Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., and the California Unruh Civil Rights Act. Compl., Dckt. No. 1. A certificate of service, filed July 9, 2009, demonstrates that the summons and complaint were personally served on defendant on June 10, 2009 in Auburn, California. Dckt. No. 5. On August 17, 2009, pursuant to plaintiff's request, the Clerk of Court entered the default of defendant. Dckt. No. 10. Plaintiff's request for entry of default states that defendant "failed to appear, plead, defend, reply, or otherwise respond to" plaintiff's complaint. Dckt. No. 8. On August 26, 2009, plaintiff filed a motion for default judgment against defendant, and mail served a copy of the motion on defendant. Dckt. No. 12.

Plaintiff's motion for default judgment seeks the following relief:

The Court grants judgment in Plaintiff's favor and against Thom Finks, for monetary damages, pursuant to the California Civil Code Section 52(a) in the amount of $8,000.00, which is based upon two occurrences of the statutory minimum of $4,000.00 per discriminatory event.... The Complaint identifies two actual and two foregone visits to the subject business/property. The foregone visits are based upon personal knowledge of existing architectural barriers, See Complaint pg 4:2-5. Although the Complaint identifies a total of four (4) actual and foregone visits, which would result in monetary damages in the amount of $16,000.00, the Plaintiff is limiting his damage demand to $8,000.00. The Plaintiff is willing to lower his monetary damages below the $8,000.00, if this matter is resolved prior to the motion hearing date. Plaintiff seeks injunctive relief of a properly configured van accessible disabled parking space with an accessible route to an accessible main entrance. The Court grants Judgment in Plaintiffs favor and against Thom Finks for injunctive relief requiring Defendants to provide for a properly configured van-accessible disabled parking space with an accessible route to an accessible main entrance in accordance with the Americans with Disabilities Act of 1990 (ADA) and the Americans with Disabilities Act Accessibility Guidelines (ADAAG) contained in 28 CFR Part 36. There will be no motion made for attorney fees or litigation costs.

Id. at 3-4.

II. DISCUSSION

It is within the sound discretion of the district court to grant or deny an application for default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court considers the following factors:

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint,

(4) the sum of money at stake in the action, (5) the possibility of a dispute concerning the material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). "In applying this discretionary standard, default judgments are more often granted than denied." Philip Morris USA, Inc. v. Castworld Products, Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D. Cal. 1999)).

As a general rule, once default is entered, the factual allegations of the complaint are taken as true, except for those allegations relating to damages. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (citations omitted). However, although well-pleaded allegations in the complaint are admitted by defendant's failure to respond, "necessary facts not contained in the pleadings, and claims which are legally ...


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