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Scott N. Johnson v. David J. Eid


April 5, 2012


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


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.


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.)


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 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, but it does not establish the amount of damages. Geddes, 559 F.2d at 560.


The undersigned declines to conduct an analysis of the Eitel factors in light of material concerns about whether service of process was properly effectuated in this case.*fn5 As a preliminary matter, a court must first "assess the adequacy of the service of process on the party against whom default judgment is requested." Bricklayers & Allied Craftworkers Local Union No. 3 v. Palomino, No. C-09-01589-CW (DMR), 2010 WL 2219595, at *2-3 (N.D. Cal. June 2, 2010) (unpublished). It is fundamental that "[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Id. (quoting Omni Capital Int'l., Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987), superseded by statute on other grounds, Futures Trading Practices Act of 1992, Pub. L. No. 102-546, § 211, 106 Stat. 3590, 3607-08 (1992), and also citing Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.1988) (stating that "[a] federal court does not have jurisdiction over a defendant unless the defendant has been served properly" under Federal Rule of Civil Procedure 4, which requires service of summons and complaint)).

Because default judgments generally are disfavored, courts have required "strict compliance with the legal prerequisites establishing the court's power to render the judgment." Palomino, 2010 WL 2219595, at *2-3 (quoting Varnes v. Local 91, Glass Bottle Blowers Ass'n, 674 F.2d 1365, 1369 (11th Cir. 1982)). Where the party seeking default judgment has not shown that the defendant has been provided with adequate notice of an action, "it is inappropriate to conclude that the defendant 'has failed to plead or otherwise defend'" under Federal Rule of Civil Procedure 55(a). Id. (citing Downing v. Wanchek, No. CIV S-07-1599 JAM EFB, 2009 WL 256502, at *3 (E.D. Cal. Jan. 30, 2009) (unpublished) (quoting Federal Rule of Civil Procedure 55(a))).

Here, as discussed above, plaintiff's original and "amended" affidavits of service contain material differences. For instance, the original affidavit states that service occurred at defendants' place of "abode" or "residence," yet the amended affidavit states that service occurred at defendants' place of "business." (Compare Dkt. No. 7 with Dkt. No. 12 at 1, 3.) The original affidavit also states that plaintiff's process server deemed substituted service upon defendants' son as complete, "no diligence or mailing required," yet the amended affidavit states that the process server decided that diligence and mailing were both required after all - such that the process server describes three unsuccessful service attempts apparently pre-dating the substituted service upon defendants' son, and such that the process server found it necessary to serve the documents via U.S. mail six months later, in November 2011. (Compare Dkt. No. 7 with Dkt. No. 12 at 2-3, 5-6.) The Clerk's Entry of Default was entered in October 2011, yet plaintiff's process server completed mail service after that entry, i.e., in November 2011.

While parties are free to file amended affidavits of service, plaintiff's motion does nothing to answer questions and allay concerns arising from the material discrepancies in the affidavits of service filed here.*fn6 Likewise, plaintiff's motion does not attempt to explain how the "amended" affidavit of service - with its material changes and description of an additional and previously-unattempted method of service (namely, service by mail) - might impact the validity of the previously-entered Clerk's Entry of Default. Plaintiff's motion does not highlight any of the differences between the original affidavit and the amended affidavit, leaving it to the court to comb through both affidavits in efforts to figure out why the "amended" affidavit was filed. Plaintiff's motion does not address any legal authority pursuant to which plaintiff alleges service was proper, and plaintiff does not offer any particular date whereby plaintiff alleges proper service was complete. Instead, plaintiff's motion addresses service of process in just three sentences:

On October 7, 2011, the Plaintiff electronically filed a

Request for Entry of Default against Defendants, David J. Eid and Sherry J. Eid. On October 17, 2011, a Clerk's Entry of Default as to David J. Eid and Sherry J. Eid, was entered attached hereto as[] Exhibit B. Also, [s]ee Docket Document 11 [sic]. While the Clerk's Entry of Default is based upon the Summons Return[ed] Executed which was filed on June 10, 2011[,] [s]ee Docket Document [sic] [,]

[t]he correct Summons Return[ed] Executed was filed afterwards on November 22, 2011. See Docket Document 12 [sic]. (Mot. for Default J. at 3-4.) Given the foregoing discussion of the significant differences between the original and amended affidavits of service, plaintiff's succinct attempt to frame the amended affidavit as "correcting" the original affidavit is something of a stretch, and without additional briefing the undersigned declines to accept that framing. Given that default judgments are ordinarily disfavored, see Eitel, 782 F.2d at 1472, and given that proper service upon non-appearing defendants is a prerequisite to entry of default judgment, the undersigned exercises his discretion to deny plaintiff's motion without prejudice to refiling.


For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for default judgment (Dkt. No. 15) be denied without prejudice to refiling.

2. The Clerk's Certificate of Entry of Default (Dkt. No. 11) is vacated without prejudice to plaintiff attempting to again obtain a clerk's entry of default.

3. After obtaining a proper clerk's entry of default based upon the most upto-date affidavit of service, namely, the affidavit of service at Docket Number 12, plaintiff may re-file his motion for default judgment, this time providing necessary details regarding how service of process was allegedly effectuated in this case and discussing the authorities that confirm such service was legally proper. Should plaintiff seek to re-file his motion, plaintiff's memorandum of points and authorities should include a more detailed discussion of service of process upon the non-appearing defendants, including identification of the specific type of service that was ultimately effectuated, the date(s) of such service, and the legal authorities under which such service was completed. For instance, if plaintiff alleges that service was effectuated through substituted service on defendants' son, plaintiff shall cite to the applicable procedural rules providing for such substituted service, and plaintiff shall describe precisely how the alleged service attempts meet all elements of the applicable rule(s) governing service.

4. Plaintiff frequently files motions for default judgment in this court. In the future, every motion for default judgment filed by plaintiff shall include a detailed discussion of the factual and legal basis for the assertion that service of process was properly made.

a. Such discussion shall be included in a separate section of plaintiff's motions for default judgment and shall bear the heading "Service of Process: Factual Background And Legal Authority Pursuant To Which Service Was Proper." Beneath that heading, plaintiff include the factual and legal bases under which plaintiff alleges service was properly effectuated. Plaintiff shall specify the precise rule(s) providing for the method of service he alleges was completed. Plaintiff's citations to these rules must also include the applicable subsection of the rule rather than a broad citation to, for example, "Federal Rule of Civil Procedure 4."

b. Should plaintiff fail to include such a section in his future motions for default judgment, such motions may be summarily denied without prejudice. The court will not comb through affidavits of service in efforts to decipher what method of service occurred; nor will the court complete plaintiff's task of determining which procedural rule(s) and subsection(s) may render service of process proper in a given case.


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