SCOTT N. JOHNSON, Plaintiff,
RODE E. MONTIJO, d.b.a. EL CAMINO TIRES, Defendant.
ORDER AND FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Pending before the court is plaintiff's June 20, 2013 motion for default judgment against defendant Rode E. Montijo, doing business as El Camino Tires, located at 48 E. Charter Way and 2498 E. Main St., Stockton, California. ECF No. 18. The court has determined that the matter shall be submitted upon the record and briefs on file and accordingly, the date for hearing of this matter shall be vacated. E.D. Cal. R. 78-230(g). Upon review of the docket, the motion for default judgment and all attached exhibits, THE COURT FINDS AS FOLLOWS:
Plaintiff initiated this action on August 6, 2012 alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., and the California Unruh Civil Rights Act. A certificate of service filed September 14, 2012 demonstrates that the summons and complaint were served on this defendant on September 4, 2012 by delivering a copy to Ivan Montijo, a "person in charge" at 340 N. Wilson Way, Stockton, CA 95205. ECF No. 5. Plaintiff also mailed to defendant Montijo by first class mail copies of these documents on September 4, 2012. Id.
On June 5, 2013, an amended proof of service of summons was filed by plaintiff reflecting a correction to the spelling of defendant Montijo's name. ECF No. 17. This amended proof demonstrates that Montijo was re-served on December 17, 2012 on Mike Montijo, a "person in charge" at 48 E. Dr. Martin Luther King Jr. Blvd, Stockton, CA 95210, and that copies of the documents were then mailed by first class mail on December 17, 2012. See id.
On November 6, 2012, pursuant to plaintiff's request, the Clerk of Court entered the default of defendant Montijo. On June 20, 2013, plaintiff filed a motion for default judgment, and served a copy of the motion by mail on the defendant at 48 E. Dr. Martin Luther King Jr. Blvd, Stockton, CA 95206. ECF No. 18. Although the complaint identifies two locations for El Camino Tires, the motion for default judgment is directed only to the location at 48 E. Charter Way/Dr. Martin Luther King, Jr. Blvd. See Mot. for Default J. ¶ 3.
It is within the sound discretion of the district court to grant or deny an application for default judgment. 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 the 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). "In applying this discretionary standard, default judgments are more often granted than denied." Philip Morris USA, Inc. v. Castworld Products, Inc. , 219 F.R.D. 494, 498 (C.D. Cal. 2003) (quoting PepsiCo, Inc. v. Triunfo-Mex, Inc. , 189 F.R.D. 431, 432 (C.D. Cal. 1999)).
As a general rule, once default is entered, the factual allegations of the complaint are taken as true, except for those allegations relating to damages. Tele Video Systems, Inc. v. Heidenthal , 826 F.2d 915, 917-18 (9th Cir. 1987) (citations omitted). However, although well-pleaded allegations in the complaint are admitted by defendant's failure to respond, "necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default." Cripps v. Life Ins. Co. of N. Am. , 980 F.2d 1261, 1267 (9th Cir. 1992).
A. The Americans with Disabilities Act
Title III of the ADA provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). Discrimination includes "a failure to remove architectural barriers... in existing facilities... where such removal is readily achievable." Id . § 12182(b)(2)(A)(iv). Under the ADA, ...