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Scott N. Johnson v. Noradino Salas

April 5, 2012

SCOTT N. JOHNSON, PLAINTIFF,
v.
NORADINO SALAS, INDIVIDUALLY AND D/B/A OSCAR'S MEXICAN FOOD; ADELA SALAS, 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 Noradino Salas, individually and doing business as Oscar's Mexican Food, and Adela Salas.*fn1 (Mot. for Default J., Dkt. No. 10.) 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 initiated this action on August 12, 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 restaurant called Oscar's Mexican Food,*fn2 which is located at 3061 Freeport Boulevard in Sacramento, California. (See Compl. ¶¶ 1-3 & Ex. B.) Plaintiff alleges that defendants are liable under the ADA and the Unruh Civil Rights Act because of architectural barriers to access at the business that plaintiff personally 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 (no disabled parking exists) . . . , [an] accessible route . . . , accessible restrooms . . . , [and an] accessible entrance . . . ." (Id. ¶ 4.) Plaintiff also appears to allege that he encountered additional barriers posed by a non-compliant door, which had an improper door width, door pressure, door handle, and door closing speed. (See id.) Finally, plaintiff alleges that he encountered additional barriers consisting of a lack of an "accessibility signage, striping, [an] accessible cashier/service counter . . . , and [an] accessible dining bar & table." (See id.) Plaintiff alleges that the removal of these "architectural barriers is readily achievable." (Id.) Plaintiff seeks injunctive relief to cure the alleged barriers to the extent that correction is readily achievable, as well as statutorily authorized money damages pursuant to the Unruh Civil Rights Act. (See id. at 20-21; see also Mot. for Default J. at 4-5 (seeking injunctive relief and $8,000 in statutory damages).)

On September 27, 2011, plaintiff filed two documents entitled "Affidavit of Service" regarding the service of each defendant with the summons, complaint, and other related documents (Dkt. No. 5). In one Affidavit of Service, plaintiff's process server declares under penalty of perjury that he effectuated substituted service on defendant Noradino Salas on September 15, 2011, at 4:34 p.m., by serving Noradino Salas's son, "Adela Salas Jr.," at "A RESIDENCE" (Dkt. No. 5 at 1). That affidavit further states: "NO DILIGENCE OR MAILING REQUIRED." (Id.) Despite the representation regarding service at a residence, the Affidavit of Service further declares under penalty of perjury that such service occurred at the business address alleged to be that of Oscar's Mexican Food: "3061 FREEPORT BLVD., SACRAMENTO, CA 95818." (Id.)

The second Affidavit of Service completed by plaintiff's process server and filed by plaintiff concerns the service of process and related documents on defendant Adela Salas (Dkt. No. 5 at 2). It is unclear from plaintiff's filings what familial or business relationship exists between Noradino and Adela Salas. As with the previously discussed Affidavit of Service, plaintiff's process server declares under penalty of perjury that he effectuated substituted service on defendant Adela Salas on September 15, 2011, at 4:34 p.m., by serving Adela Salas's son, "Adela Salas Jr.," at "A RESIDENCE" (Dkt. No. 5 at 1). The affidavit further states: "NO DILIGENCE OR MAILING REQUIRED." (Id.) Despite the representation regarding service at a residence, the Affidavit of Service further declares under penalty of perjury that such service occurred at the business address alleged to be that of Oscar's Mexican Food, "3061 FREEPORT BLVD., SACRAMENTO, CA 95818." (Id.)

Despite these suspect affidavits addressing service of process, plaintiff requested, on November 9, 2011, that the Clerk of Court enter default against defendants on the basis of those affidavits. (Req. for Entry of Default, Dkt. No. 6.) On November 10, 2011, the Clerk of Court entered the default of both defendants. (Clerks Cert. of Entry of Default, Dkt. No. 7.) 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 15, 2011, plaintiff filed a status report with the court (Dkt. No. 8). Plaintiff's status report represents to the court that "Defendants have been served, but have not answered." (Id. at 2.)

Despite plaintiff's representations to the court that defendants had been properly served with process, plaintiff filed, on December 22, 2011, additional Proof of Service of Summons forms and related documents (Dkt. No. 9) that materially contradict the representations in each Affidavit of Service prepared by plaintiff's process server under penalty of perjury and filed by plaintiff, who is an attorney and officer of the court. As to defendant Noradino Salas, plaintiff filed a Proof of Service of Summons form, executed on December 19, 2011, wherein plaintiff's process server declares under penalty of perjury that he effectuated substituted service on defendant Noradino Salas on September 15, 2011, at 4:34 p.m., by serving Noradino Salas's son, "Adela Salas Jr." (Dkt. No. 9 at 5.) Contradicting the prior Affidavit of Service, the Proof of Service of Summons form declares that substituted service was effectuated at a business. (Id.) Also contradicting the previously filed Affidavit of Service, the later-filed form states under penalty of perjury that plaintiff's process server mailed copies of the summons, complaint, and related documents to Oscar's Mexican Food on September 16, 2011. (Id.) Plaintiff also filed his process server's "Declaration of Diligence," which attempts to state what efforts were made to serve Noradino Salas, but this declaration further contradicts the other documents addressing service (Dkt. No. 9 at 7). In particular, the Declaration of Diligence, again executed under penalty of perjury, declares that plaintiff's process server was unable to effectuate personal service on Noradino Salas, but effectuated substituted service by serving "Noradino Salas Jr." on September 15, 2011, at 4:34 p.m.-this is the same date and time that plaintiff's Affidavit of Service and Proof of Service of Summons declare under penalty of perjury that plaintiff effectuated substituted service by serving "Adela Salas Jr." Accompanying the Proof of Service of Summons and Declaration of Diligence-which contradict one another-is a "check-the-box" form that suggests without explanation that plaintiff effectuated service of process pursuant to California Code of Civil Procedure § 415.20(b).*fn3 (Dkt. No. 9 at 8).

In regards to defendant Adela Salas, plaintiff filed a similar Proof of Service of Summons form, Declaration of Diligence, and "check-the-box" form regarding service (Dkt. No. 9 at 1-4). These forms, executed under penalty of perjury and filed by plaintiff, present all of the same problems and contradictions as those pertaining to the service of defendant Noradino Salas.

On March 12, 2012, plaintiff filed a motion for default judgment against defendants and served a copy of the motion on defendants by U.S. mail at the business address for Oscar's Mexican Food. (Cert. of Serv., Mar. 12, 2012, Dkt. No. 10.) 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. (See Mot. for Default J. at 4.) Plaintiff also seeks injunctive relief in the form of readily achievable property alterations remedying all of the barriers alleged in the complaint except those presented by the door or doors at Oscar's Mexican Food. (See id. at 4-5.) Plaintiff's motion, signed under penalty of perjury, can be characterized as terse, and in no way explains the myriad contradictions regarding service described above. Indeed, plaintiff's motion does not address service of process at all. 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.*fn4

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 ...


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