United States District Court, N.D. California
SHELBY G. HEIFETZ, Plaintiff,
BREED PROPERTIES et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE
Shelby Gail Heifetz (“Heifetz”) brings this
Motion for Default Judgment against Defendants Breed
Properties and Nation's Foodservice, Inc.
(“Foodservice”) d/b/a Nation's Giant
Hamburgers (collectively, “Defendants”). See
generally Mot. (dkt. 13). On July 20, 2016, the court
clerk entered default against Defendants. See
generally Entry of Default (dkt. 10, 11). Defendants
have not filed responses with the Court.
Court held a hearing on the present motion on February 17,
2017. See Minute Entry (dkt. 20). Because Breed
Properties has not been properly served in the present
action, the Court DENIES the motion for default judgment as
to Breed Properties. For the reasons outlined below, however,
the Court GRANTS the motion as to Foodservice, and awards
declaratory relief, injunctive relief, statutory damages,
attorneys' fees, and litigation costs.
is a legally blind person who uses a white cane when
ambulating. Compl. (dkt. 1) ¶ 11. Defendants own,
operate, manage, and/or lease Nation's Giant Hamburgers
(“Nation's”) located at 76 Moraga Way,
Orinda, California. Id. ¶ 8. Heifetz is a
frequent patron of Nation's, with documented visits on
September 2, 2014, and January 15, 2015. Id. ¶
14. During her visits to Nation's, Heifetz encountered
difficulty entering Nation's due to the weight and
closure speed of the entrance door. Id. ¶ 15.
Once inside Nation's, Heifetz experienced difficulty
navigating due to the confusing path of travel and various
protruding items. Id. ¶16. Heifetz also
experienced difficulty when using Nation's' restrooms
because the door was “very heavy, ” closed very
quickly, and lacked braille signage. Id. ¶ 17.
March 23, 2015, Heifetz filed a complaint pursuant to Title
III of the Americans with Disabilities Act of 1990
(“ADA”), the California Disabled Persons Act, the
California Unruh Civil Rights Act, the California Health and
Safety Code, and the California Business and Professions
Code. See generally Compl. The complaint seeks an
award of declaratory relief, injunctive relief, statutory
damages, attorneys' fees, and costs. Id. at
Court issued summons for Defendants on March 28, 2015.
Summons (dkt. 5). On April 5, 2016, a registered process
server personally served Foodservice by providing a copy of
the summons and the complaint to David Ballot, the person
authorized to accept service of process on behalf of
Foodservice. Proof of Service of Summons (dkt. 6). On April
12, 2016, a process server attempted to personally serve Ned
Robinson, the person authorized to accept service of process
on behalf of Breed Properties, at 3730 Mt. Diablo Blvd. #300,
Lafayette, CA 94549. Proof of Service on Breed Properties
(dkt. 7). Instead, the process server left a copy of the
summons and the complaint with Stephanie Varisto, the person
in charge at 3730 Mt. Diablo Blvd. #300, Lafayette, CA 94549,
and mailed an additional copy to said address. Id.
July, 19, 2016, Heifetz requested that the court clerk enter
default. Motion for Entry of Default (dkt. 9). The clerk
entered default against Defendants on July 20, 2016. Entry of
Default (dkts. 10, 11). On December 12, 2016, Heifetz filed
the present motion for default judgment. Mot. (dkt. 13).
to Federal Rule 55(b), the Court may enter a default
judgement upon motion by the Plaintiff after entry of default
by the clerk. See Fed.R.Civ.P. 55(b). Whether to
grant a motion for the entry of a default judgment is within
the discretion of the trial court. See Lau Ah Yew v.
Dulles, 236 F.2d 415, 416 (9th Cir. 1956). Upon an entry
of default by the clerk, the factual allegations of the
plaintiff's complaint will be taken as true, except those
relating to the amount of damages. See Derek Andrew, Inc.
v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir.
2008). If the facts necessary to determine damages are not
contained in the complaint, or are legally insufficient, they
will not be established by default. See Cripps v. Life
Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992).
should consider seven discretionary factors, often referred
to as the “Eitel factors, ” before
issuing a decision on a motion for default judgment.
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986). The Eitel Factors are as follows: (1) the
possibility of prejudice to the plaintiff; (2) the merits of
the plaintiff's substantive claims; (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 likelihood of obtaining a decision on the merits.
Service of Process
plaintiff requests default judgment, the court must first
assess whether the defendant was properly served with notice
of the action. See, e.g., Solis v.
Cardiografix, No. 5:12-cv-01485 EJD, 2012 WL 3638548, at
*2 (N.D. Cal. Aug. 22, 2012). Under Federal Rule of Civil
Procedure 4(h)(1)(B), a domestic corporation may be served
“by delivering a copy of the summons and the complaint
to an officer, a managing or general agent, or any other
agent authorized by appointment or by law to receive service
of process.” Fed.R.Civ.P. 4(h)(1)(B). In ...