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Scott N. Johnson v. David J. Eid

April 5, 2012

SCOTT N. JOHNSON, PLAINTIFF,
v.
DAVID J. EID, INDIVIDUALLY AND D/B/A DAVID'S SPIRIT; SHERRY J. EID, INDIVIDUALLY AND D/B/A DAVID'S SPIRIT, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is plaintiff's motion for default judgment against defendants David J. Eid and Sherry J. Eid ("defendants"), who are the only named defendants in this action.*fn1 (Mot. for Default J., Dkt. No. 15.) Because oral argument would not materially aid the 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 denies plaintiff's motion for default judgment without prejudice for lack of a sufficient showing of proper service of process.

I. BACKGROUND

Plaintiff Scott N. Johnson, an attorney, initiated this action on May 13, 2011, 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 own, operate, manage, or lease a "gas/service station" called David's Spirit, which is located at 2395 North Texas Street, Fairfield California. (Compl. ¶¶ 1-3.) Plaintiff alleges that defendants are 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 . . . , accessible restrooms . . . , [an] accessible entrance . . . , compliant door width . . . , complaint door pressure and door handles . . . , complaint door closing speeds . . . , [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. (See id. at 20-21; see also Mot. for Default J. at 4-5.)

An affidavit of service filed by plaintiff reflects that on May 31, 2011, plaintiff, through a process server, allegedly effectuated service of process on both defendants at the business address provided for David's Spirit. (Aff. of Service filed June 10, 2011, Dkt. No. 7.) In the affidavit of service, plaintiff's process server declared that he left copies of the summons, complaint, and related documents at defendants' "usual place of abode"*fn2 and gave them to defendants' son, Jamal Eid. (See id.) Plaintiff's process server declared that, because the documents were "served at a residence," therefore "no diligence or mailing [was] required." (See id.) It is unclear when the process server signed the affidavit of service, as several different date stamps appear on the document. (Id.)

On October 7, 2011, plaintiff requested that the Clerk of Court enter default against defendants. (Req. for Entry of Default, Dkt. No. 8 at 1-2.) Plaintiff filed the above-described affidavit of service in support of his request. (Dkt. No. 8-1.) On October 17, 2011, the Clerk of Court entered the default of defendants. (Clerks Cert. of Entry of Default, Dkt. No. 11.) In entering default, 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. (See id.)

On November 22, 2011, plaintiff filed an "amended affidavit of service." (Amended Affidavit of Service, filed November 22, 2011, Dkt. No. 12.) It is unclear when the process server actually signed the "amended" affidavit of service, as several different date stamps appear on the document. (Id.) However, two of the six pages of the "amended" affidavit of service show the process server signed those particular pages on November 2, 2011. (Id. at 3, 6.)

In any event, the "amended" affidavit consists of the original affidavit of service with several significant changes and some additional pages. For instance, in the "amended" affidavit the process server removed references to having served defendants at their "usual place of abode" or "residence" and now states that service occurred at defendants' "usual place of business." (Compare Dkt. No. 7 with Dkt. No. 12 at 1, 3.) The process server also added language to the original affidavit, namely, language stating that a separate "declaration of diligence and mailing" is attached thereto. (Id.) That separate declaration indicates that, back in May of 2011, prior to leaving copies of the summons and complaint with defendants' son, the process server made three unsuccessful attempts to "effect personal service upon" defendants. (Id. at 2, 5.) It appears that only after those three unsuccessful attempts did the process server leave the documents with defendant's son on May 31, 2011. (Id.) The process server also attaches additional pages to the "amended" affidavit suggesting that, while the process server did not mail copies of the summons, complaint, and related documents to defendants at the time of the substituted service upon defendants' son, the process server waited until November 2, 2011, before completing such mailing. (Id. at 3, 6.)

On February 14, 2012, plaintiff filed a motion for default judgment against defendants and served a copy of the motion on defendants by U.S. mail. (Cert. of Serv., Feb. 14, 2012, Dkt. No. 15 at 6.) A review of the court's docket reveals that defendants have not appeared in this action or filed a response to the motion for default judgment.*fn3

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.*fn4 (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, accessible restrooms, and accessibility signage and striping, all in accordance with the ADA and the Americans With Disabilities Act Accessibility Guidelines contained in 28 C.F.R. 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. Employee Painters' Trust v. Ethan Enters., Inc. 480 F.3d 993, 998 (9th Cir. 2007) ("We review the district court's entry of the default judgment and decisions not to set aside that judgment for an abuse of 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 ...


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