The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently before the court is plaintiff's motion for entry of default judgment against defendants.*fn2 (Dkt. No. 11.) Because oral argument would not materially aid resolution of the pending motion, this matter is submitted on the briefs and record without a hearing. See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). For the reasons stated below, the undersigned recommends that plaintiff's motion for entry of default judgment be granted, that judgment be entered against defendants, and that plaintiff be awarded damages and injunctive relief.
Plaintiff initiated this action on July 28, 2010, alleging violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq., and California's Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq. (See generally Compl., Dkt. No. 1.) Plaintiff, who is affected by quadriplegia and uses a wheelchair and a specially configured van, alleges that defendants are entities that jointly own, operate, manage, or lease the Washoe Motel and the Pine Cone Acre Motel, a single accommodation in South Lake Tahoe, California. (Id. ¶¶ 1-2.) Plaintiff alleges that defendants are liable under the ADA and Unruh Civil Rights Act because of architectural barriers to access at the business, which consist of a lack of: properly configured, van-accessible disabled parking spaces; an accessible route; an accessible entrance; and accessibility signage and striping. (Id. ¶¶ 3, 12-20.) Plaintiff seeks statutorily authorized money damages pursuant to the Unruh Civil Rights Act and injunctive relief. (Id. at 18-19; see also Mot. for Default J. at 4-5.)
Affidavits of service filed on October 15, 2010, demonstrate that on September 14, 2010, plaintiff, through a process server, effectuated service of process on Robert M. Twomey, who is the agent for service of process for both defendants. (See Affs. of Serv., Dkt. No. 5; see also Req. for Entry of Default, Ex. A, Dkt. No. 7, Doc. No. 7-1.) On November 26, 2010, plaintiff requested that default be entered against defendants. (See Req. for Entry of Default at 1-2.) On November 29, 2010, the Clerk of Court entered the default of defendants. (Clerks Cert. of Entry of Default at 1, Dkt. No. 9.) In doing so, the Clerk of Court stated that it appeared from the record and papers on file in the action that defendants were duly served with process, but failed to appear, plead, or answer plaintiff's complaint within the time allowed by law. (Id.)
On January 8, 2011, plaintiff filed a motion for default
judgment*fn3 against defendants, and served a copy of the motion by U.S. mail on
defendants' agent for service of process, Mr. Twomey.*fn4
Plaintiff's motion represents that Mr. Twomey has an
ownership interest in both motels at issue and at some point contacted
plaintiff. (Mot. for Default J. at 4.) Plaintiff further represents
that he informed Mr. Twomey of the "already existing Request for
Clerk's Entry of Default," and that the parties "were not able to
agree upon any settlement of this action." (Id.) A review of the
court's docket reveals that defendants have not appeared in this
action or filed any response to the motion for default judgment.
Plaintiff's motion for default judgment seeks statutory damages pursuant to the Unruh Civil Rights Act in the amount of $8,000, which consist of minimum statutory damages of $4,000 for each of two actual visits to the premises in question that resulted in a discriminatory events.*fn5 (See Mot. for Default J. at 4.) Plaintiff also seeks injunctive relief in the form of readily achievable property alterations that consist of providing the correct number and type of properly configured, van-accessible disabled parking spaces, an accessible route to an accessible entrance, accessibility signage and striping signage, all in accordance with the ADA and the Americans With Disabilities Act Accessibility Guidelines contained in 28 CFR Part 36. (See id. at 4-5.)
Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed. R. Civ. P. 55(a). However, "[a] defendant's default does not automatically entitle the plaintiff to a court-ordered judgment." PepsiCo, Inc. v. Cal. Sec. Cans, (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 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.
238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)). Instead, the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court considers the following factors:
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily disfavored. Id. at 1472.
As a general rule, once default is entered, well-pleaded factual allegations in the operative complaint are taken as true, except for those allegations relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)); accord Fair Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). In addition, although well-pleaded allegations in the complaint are admitted by a defendant's failure to respond, "necessary facts not contained in the pleadings, and claims which are legally insufficient, are notestablished by default." Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (stating that a defendant does not admit facts that are not well-pled or conclusions of law); Abney v. Alameida, 334 F. Supp. 2d 1221, 1235 (S.D. Cal. 2004) ("[A] default judgment may not be entered on a legally insufficient claim."). A party's default conclusively establishes that party's liability, although it does not establish the amount of damages. Geddes, 559 F.2d at 560 (stating that although a default established liability, it did not establish the extent of the damages).
A. Appropriateness of the Entry of Default Judgment Under ...