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Scott N. Johnson v. Scott Shehadi

September 12, 2011

SCOTT N. JOHNSON, PLAINTIFF,
v.
SCOTT SHEHADI, INDIVIDUALLY AND D/B/A SPORTSMAN, ET AL., DEFENDANTS.



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 default judgment against defendant Scott Shehadi, who is the only remaining named defendant in this action.*fn1 (Mot. for Default J. Dkt. No. 15.) The undersigned heard plaintiff's motion for default judgment on its law and motion calendar on September 8, 2011. Plaintiff Scott N. Johnson, an attorney, appeared at the hearing and represented himself. No appearance was made by or on behalf of Mr. Shehadi. For the reasons stated below, the undersigned recommends that plaintiff's motion for default judgment be granted, that judgment be entered in plaintiff's favor, and that plaintiff be awarded the requested damages and injunctive relief.

I. BACKGROUND

Plaintiff initiated this action on July 13, 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's First Amended Complaint, filed on December 9, 2010, is the operative complaint and alleges claims based on the ADA and the Unruh Civil Rights Act. (See generally First Am. Compl., Dkt. No. 6.)

Plaintiff, who is affected by quadriplegia and uses a wheelchair and a specially configured van, alleges that Mr. Shehadi owns, operates, manages, or leases a retail store called The Sportsman, which is located at 2556 Lake Tahoe Boulevard, in South Lake Tahoe, California. (First Am. Compl. ¶¶ 1-2.) Plaintiff alleges that Mr. Shehadi is liable under the ADA and Unruh Civil Rights Act because of architectural barriers to access at the business that plaintiff actually encountered, which consist of a lack of: "the correct number and type of properly configured disabled parking space(s) including the lack of a van accessible disabled parking space, [an] accessible route, [an] accessible entrance, and accessibility signage and striping." (Id. ¶ 4.) Plaintiff alleges that the removal of these architectural barriers is readily achievable. (Id.) Plaintiff seeks injunctive relief and statutorily authorized money damages in an amount of $8,000 pursuant to the Unruh Civil Rights Act. (Id. at 18-19; see also Mot. for Default J. at 4.)

An affidavit of service filed by plaintiff reflects that on February 7, 2011, plaintiff, through a process server, effectuated service of process on Mr. Shehadi at the address provided for The Sportsman. Plaintiff's process server made three attempts to personally serve Mr. Shehadi and, on February 7, 2011, left the summons, complaint, and other documents with the manager on duty at The Sportsman, Jeff Hanlou. (See Aff. of Serv., Dkt. No. 9; see also Req. for Entry of Default, Ex. A, Dkt. No. 10, Doc. No. 10-1.) Plaintiff's process server also mailed a copy of the summons, complaint, and other documents to the address provided for The Sportsman. On April 20, 2011, plaintiff requested that the Clerk of Court enter default against Mr. Shehadi. (Req. for Entry of Default at 1.) On April 21,2011, the Clerk of Court entered the default of Mr. Shehadi. (Clerks Cert. of Entry of Default, Dkt. No. 12.) In entering default, the Clerk of Court stated that it appeared from the record and papers on file in the action that Mr. Shehadi was duly served with process, but failed to appear, plead, or answer plaintiff's complaint within the time allowed by law. (See id.)

On July 14, 2011, plaintiff filed a motion for default judgment against Mr. Shehadi and served a copy of the motion on Mr. Shehadi by U.S. mail. (Cert. of Serv., July 14, 2011, Dkt. No. 15.) Plaintiff's motion also states:

Plaintiff was contacted by the Defendant on April 29, 2011. The Plaintiff personally spoke with the Defendant and informed him about the Motion for Default Judgment. The Plaintiff is also emailing the Defendant a copy of this notice and Motion for Default Judgment.

(Id. at 3.) Plaintiff's motion is silent with respect to whether Mr. Shehadi expressed any intent to defend himself in this action. A review of the court's docket reveals that Mr. Shehadi has not appeared in this action or filed a 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 consists of minimum statutory damages of $4,000 for each of two actual visits to the premises in question that resulted in discriminatory events.*fn2 (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, and accessibility signage and striping, 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.)

II. LEGAL STANDARDS

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, 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:

(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.

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. ...


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