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Sceper v. Trucks Plus

November 2, 2009

DUANE H. SCEPER, PLAINTIFF,
v.
TRUCKS PLUS, AND MARK R. WARNOCK, DEFENDANTS.



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 defendants Trucks Plus and Mark R. Warnock. On August 19, 2009, a hearing on the motion was held, and James Mason appeared on behalf of plaintiff. Defendants made no appearance. 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 in part and denied in part.

I. BACKGROUND

Plaintiff initiated this action on November 20, 2008, alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq.; various violations of the California Civil Code; and negligence per se. Compl., Dckt. No. 1. Plaintiff alleges subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. Id. ¶¶ 1-2. A certificate of service, filed April 7, 2009, demonstrates that the summons and complaint were personally served on defendants on March 31, 2009 in Redding, California. Dckt. No. 7.

On May 20, 2009, pursuant to plaintiff's request, the Clerk of Court entered the default of both defendants. Dckt. Nos. 8, 9. Plaintiff's request for entry of default provides that defendant "failed to file an answer or other responsive pleading at all." Dckt. No. 8.

On June 8, 2009, plaintiff filed a motion for default judgment and injunction (dckt. Nos. 10-12) and on June 16, 2009, filed an amended motion for default judgment. Dckt. No. 13. On June 25, 2009, plaintiff served via email Jerry Pickering, who plaintiff had been corresponding with regarding the case, and who plaintiff was informed and believed was "[d]efendants' last known attorney of record," with a copy of the motion and amended motion for entry of default judgment and all supporting documents. Dckt. No. 16. While defendants were not personally served with plaintiff's motion and amended motion for default judgment, the documents were properly served on Mr. Pickering. Additionally, copies of email correspondence attached to plaintiff's counsel's June 25, 2008 declaration (dckt. No. 16) demonstrates that defendants had actual knowledge of the pending motion. After multiple emails between plaintiff's counsel and Mr. Pickering regarding plaintiff's intention to seek a default absent settlement, in an email dated May 19, 2009, Mr. Pickering told plaintiff's counsel that defendants had instructed him "to do nothing" because defendants were "in the process of filing bankruptcy."*fn1 Dckt. No. 16-2. Although plaintiff was not required to serve these non-appearing defendants with a copy of the motion*fn2 , the fact that defendants were aware of the motions and failed to oppose it further indicates that they have chosen not to defend this action.

Plaintiff's amended motion for default judgment states:

Plaintiff is entitled to a judgment in the amount of $24,000.00 for six (6) violations of Cal. Civ. Code § 51; $25,000.00 for violation of Cal. Civ. Code § 51.7; injunctive relief; attorney fees of $12,725.00; $477.25 in costs and other relief set forth in the proposed Order and Judgment filed herewith, and as detailed in the Declarations of Duane H. Sceper and James C. Mason.

Dckt. No. 13.

Plaintiff's proposed order and injunction requests the following order:

1. Defendants Trucks Plus and Warnock are jointly and severably liable to plaintiff for Discriminatory Practices in Public Accommodations and Negligence Per Se violations of the ADA and California's Unruh Act.

2. Defendant Warnock is liable to plaintiff for committing threats of intimidation and violence against plaintiff in violation of California Civil Code § 51.7.

3. Plaintiff is awarded $24,000 in statutory damages pursuant to California Civil Code § 52(a).

4. Plaintiff is awarded $25,000 in statutory damages pursuant to California Civil Code §§ 51.7 and 52(b).

5. Plaintiff is awarded $12,725 in attorney's fees and $477.25 in costs pursuant to 42 U.S.C. §§ 12188(a), (b) and 12205 as well as California Civil Code § 52(a).

6. Plaintiff Duane H. Sceper is entitled to the following Injunctive Relief: Defendants Trucks Plus and Mark R. Warnock shall remove all architectural barriers per 28 C.F.R. Sec. 36.304 located at 3263 BECHELLI LN., REDDING, CA 96002.

Dckt. No. 17.

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 ...


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