United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR UNITED STATES DISTRIT JUDGE
this lawsuit, Plaintiff Becky Barnes-Boers seeks injunctive
and monetary relief for alleged violations of the Americans
with Disabilities Act, the Unruh Civil Rights Act, and the
California Disabled Persons Act against Defendant Harold D.
Tozier. Plaintiff also asserts a claim for negligence against
Defendant based on the aforementioned statutory violations.
The gravamen of Barnes-Boers's claim is that a property
owned by Tozier is not sufficiently accessible to
wheelchairs. Before the Court is Defendant's Motion to
Set Aside Default Judgment, Motion to Quash Service, and
Motion to Dismiss for Failure to Serve Process. ECF No. 31.
For the following reasons, Defendant's Motion to Set
Aside Default Judgment and Motion to Quash Service are
GRANTED, while Defendant's Motion to Dismiss is
case has a long and tortured procedural history. Plaintiff
filed her complaint on July 30, 2013. ECF No. 1. Less than
three months later, she filed an Application for Order of
Summons. ECF No. 5. That motion was improperly noticed, and
was not set for a hearing until the Court did so of its own
motion on August 11, 2014. ECF No. 6. Later that month, the
motion was denied for lack of supporting evidence, and
Plaintiff was given leave to file an amended motion. ECF No.
filed an amended motion on September 16, 2014. ECF No. 10.
That motion was once again deficiently filed. Plaintiff
correctly filed the motion several weeks later on October 1,
2014. ECF No. 12. The Court ultimately denied the motion on
November 26, 2014, because Plaintiff did not reasonably
exhaust efforts to serve process on Defendant. ECF No. 14.
Her efforts were limited to three brief visits to a locked
gate outside Defendant's residence in Oroville and a
visit to a business address that shares Defendant's
name-Tozier Office Products-where Plaintiff was advised
Defendant “does not ever come in.” Id.
at 2. The Court also noted that while notice of the motion
had been given to Defendant's attorney, Plaintiff did not
ask the attorney about the location of his client.
Id. at 5 n.3.
February 24, 2015, the Court referred the case to Alternative
Dispute Resolution and stayed the matter. ECF No. 15. After
almost four months of silence from the parties, on June 15,
2015, the Court ordered Plaintiff to file a status report.
ECF No. 16. Ten days later, Plaintiff filed such a report.
ECF No. 18. On August 31, 2015, Plaintiff requested an entry
of default, which was entered by the Clerk. ECF Nos. 20-21.
On January 21, 2016, the Court vacated the entry of default
due to the stay. ECF No. 22. In the same January 21, 2016
Order, however, the Court also lifted the stay and ordered
Plaintiff to serve Defendant with a copy of its order doing
eight months later, on August 10, 2016, the Court ordered
Plaintiff to show cause why the case should not be dismissed
for failure to prosecute. ECF No. 10. Six days later,
Plaintiff filed a certificate of service claiming that
Defendant had been properly served with the Court's order
lifting the stay by leaving a copy with an employee at
Tozier's Office Products. ECF No. 24. The next month,
Plaintiff requested and received another entry of default.
ECF Nos. 26-27. Despite her earlier claim that service had
been completed, Plaintiff once again filed a motion for
service of process by publication on November 7, 2016. ECF
No. 29. Because of this contradiction, the Court denied the
motion. ECF No. 30.
on December 28, 2016, Defendant filed motions to set aside
the default, quash service, and dismiss for failure of
service. ECF No. 31. In those motions, Defendant claims he
had no notice of the lawsuit until he “indirectly
learned about [it] despite never being served.”
Id. at 2. He does not, however, state when he
learned of the suit. The Court here does not set out to
determine when Defendant learned of the suit, but it is worth
noting that it is plausible that he had actual notice of the
suit in 2013 when he retained his original counsel in this
matter, Mark Emmett. See Decl. of Harold Tozier, ECF
No. 31-2, ¶ 5. Plaintiff has also provided evidence that
the summons and complaint were sent by U.S. Mail to the
address Defendant admits is his home address. See
Decl. of Tozier, ¶ 2 (identifying the address of
Tozier's home since 2002); Decl. of Raymond G. Ballister,
ECF No. 5-1, ¶¶ 8-9 (stating that the summons and
complaint were sent to the address identified by Tozier).
Furthermore, Defendant hired a Certified Access Specialist to
inspect the property and-though he claims “no
improvements were necessary because the building had not been
remodeled since 1989”-“out of an abundance of
caution” he made recommended improvements. Def.'s
Mem. of P & A in Supp. of Def.'s Mots., ECF No. 31-1,
at 3 n.1. At the same time, though, Plaintiff claims he did
so not because he had actual notice of the suit, but because
he “hear[d a] rumor that [h]e had been sued for an ADA
violation.” Decl. of Tozier, ¶ 6.
Court addresses each of Defendant's three motions in
Motion to Set Aside Default
Federal Rule of Civil Procedure 55(c), “the court may
set aside an entry of default for good cause.”
“To determine ‘good cause, ' a court must
‘consider[ ] three factors: (1) whether [the party
seeking to set aside the default] engaged in culpable conduct
that led to the default; (2) whether [it] had [no]
meritorious defense; or (3) whether reopening the default
judgment would prejudice' the other party.”
United States v. Signed Personal Check No. 730 of Yubran
S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010)
(alterations in original) (quoting Franchise Holding II,
LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922,
925-26 (9th Cir. 2005)). “[J]udgment by default is a
drastic step appropriate only in extreme
circumstances.” Id. However, the presence of
any one of these factors is sufficient to refuse to set aside
a default. Id.
has failed to show that any of the three factors are present
here. Plaintiff has provided no evidence that setting aside
the default would be prejudicial, and the age of
Defendant's buildings appears to be a potentially
meritorious defense. See Def.'s Mem. of P &
A in Supp. of Def.'s Mots., at 3 n.1 (“Mr. Tozier
was informed that no improvements were necessary [under the
ADA] because the building had not been remodeled since
1989.”) Defendant has also yet to be properly served.
Though it is arguable that Defendant knew of the lawsuit-he
retained counsel when it was originally filed in
2013-actively avoided service, and refused to respond to
Plaintiff's service letters, Plaintiff has not shown that
the “drastic step” of the entry of default
judgment is appropriate here. Thus Defendant's Motion to
Set Aside Default is GRANTED.