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Heifetz v. Breed Properties

United States District Court, N.D. California

February 23, 2017

SHELBY G. HEIFETZ, Plaintiff,
v.
BREED PROPERTIES et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT

          CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         The 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.

         I. BACKGROUND

         Heifetz 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.

         On 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 14.[1]

         The 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.

         On 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).

         II. LEGAL STANDARD

         Pursuant 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).

         A court 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. Id.

         III. DISCUSSION

         A. Service of Process

         When a 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 ...


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