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Jesus Sosa v. Gerardo Mejia D/B/A Mejia's Taco Shop

April 7, 2011

JESUS SOSA,
PLAINTIFF,
v.
GERARDO MEJIA D/B/A MEJIA'S TACO SHOP,
DEFENDANT.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION RECOMMENDING MOTION TO SET ASIDE ENTRY OF DEFAULT BE DENIED OBJECTIONS DUE WITHIN FOURTEEN DAYS

(ECF No. 11)

I. BACKGROUND

A. Plaintiff's Allegations in the Complaint

On August 12, 2010, Plaintiff Jesus Sosa filed a Complaint against Defendant Gerardo Mejia doing business as Mejia's Taco Shop. The Complaint seeks relief pursuant to the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., California Civil Code §§ 51, 54, and 54.1, and the California Health and Safety Code.

In his Complaint, Plaintiff alleges essentially as follows: Plaintiff is a disabled wheelchair-user. Defendant operates Mejia's Taco Shop, a restaurant in Madera, California. When Plaintiff visited Defendant's restaurant, he encountered barriers that interfered with his ability to use and enjoy the goods, services, privileges, and accommodations offered. More specifically, on an unspecified date, Plaintiff visited Mejia's Taco Shop and encountered barriers and deficiencies associated with parking spaces, ramps, signs, doormats, toilet facilities, seating and access. He identifies approximately thirty-eight separate "barriers" that deter him from visiting the restaurant. The barriers are easy to remove, but Defendants have intentionally refrained from making alternations necessary to comply with accessibility standards. (ECF No. 2.)

Plaintiff seeks as relief an injunction, declaratory relief, statutory damages, and attorney's fees and costs. (Id.)

It is relevant to this motion that Plaintiff and his counsel simultaneously initiated in this Court three similar actions against other defendants. See Case Nos. 1:10-CV-01446-LJO-GSA, 1:10-CV-01494-OWW-SKO, and 1:10-CV-01577-LJO-DLB. Reportedly, defense counsel in this case also is representing the defendant(s) in each of those cases. None of these other matters is before the undersigned Magistrate Judge.

B. Procedural History

On September 8, 2010, Plaintiff filed a proof of service indicating that on August 30, 2010, Defendant Gerardo Mejia had been personally served with the summons and related papers at Mejia's Taco Shop, 151 South Madera Avenue, Madera, California. (ECF No. 6.) On November 16, 2010, Plaintiff requested the Clerk of the Court enter default against Defendant Mejia. (ECF No. 8.) On November 17, 2010, the Clerk of the Court entered default. (ECF No. 9.)

Two and one half months later, on January 31, 2011, Defendant filed a Motion to Set Aside the Clerk's Default. (ECF No. 11.) On February 22, 2011, Plaintiff filed his opposition. (ECF No. 14.) The matter was set for hearing on March 18, 2011. On March 14, 2011, the Court determined pursuant to Local Rule 230(g) that the matter was suitable for decision without oral argument. The scheduled hearing on the Motion to Set Aside Default was vacated and the matter deemed submitted. (ECF No. 15.)

The Court has carefully reviewed and considered all of the pleadings and moving and opposition papers, including arguments, points and authorities, declarations, and exhibits.*fn1

C. Factual Dispute Regarding Timing of Response to Pleading

The parties present different versions, or at least different understandings, of what occurred between the service of the Complaint in this case and the filing of the instant ...


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