United States District Court, E.D. California
DUE WITHIN FOURTEEN DAYS
FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING IN
PART PLAINTIFF'S AMENDED MOTION FOR DEFAULT JUDGMENT (ECF
before the Court is Plaintiff's amended motion for
default judgement. Defendants have not filed an opposition to
the motion and the time do so has expired.
argument on Plaintiff's motion was set for April 26,
2017. Counsel Zachary Best appeared telephonically for
Plaintiff. Defendants did not appear at the hearing.
is substantially limited in his ability to walk and must use
a cane or wheelchair for mobility. (Compl. ¶ 8, ECF No.
1.) On or about July 16, 2016, Plaintiff went to Ivanhoe Mini
Mart in Ivanhoe, California (“the facility”)
where there was a narrow, raised walkway in front of the
store entrance, with no ramp provided, and he was forced to
wheel over the curb and then struggled to open the door while
his wheelchair was positioned on the narrow walkway; the
entry door was heavy, which made it even more difficult for
Plaintiff to open without his wheelchair rolling off the
narrow walkway outside the door; the aisles inside the store
lacked sufficient clear width for Plaintiff's wheelchair
to pass through and Plaintiff could not go down most of the
aisles in the store, which prevented him from reaching items
he wanted to purchase; and the transaction counter and the
debit card reader on top of the counter were too high, making
them hard for Plaintiff to reach. (Id. at
¶¶ 1, 10.) Plaintiff alleges that he will return to
the facility once the barriers are removed. (Id.
¶ 12.) On January 12, 2017, Plaintiff filed the instant
action alleging violations of the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. §§ 12101
et seq.; California's Unruh Act, Cal. Civ. Code
§§ 51 et seq.; and the California Health and Safety
Code. (Id. at ¶¶ 16-46.)
January 19, 2017, Plaintiff served a copy of the summons and
complaint on Defendants by leaving the documents with Jose
Valencia, the individual who appeared to be in charge, at
15841 Avenue 328, Ivanhoe, California, and the documents were
then mailed on January 23, 2017. (Proofs of Service, ECF Nos.
5, 6.) Defendants did not respond to the complaint and on
March 7, 2017, Plaintiff filed a request for entry of
default. (ECF No. 7.) On March 8, 2017, the Clerk of the
Court entered default against Defendants. (ECF No. 8.) On
March 21, 2017, Plaintiff filed a motion for default
judgment. (ECF No. 10.) At the request of the Court,
Plaintiff filed an amended motion for entry of default
judgment on March 27, 2017. (ECF No. 12.)
to Rule 55 of the Federal Rules of Civil Procedure, unless a
claim is for a sum certain or a sum that can be made certain
by computation, a party must apply to the court for a default
judgment. Fed.R.Civ.P. 55(b). Upon entry of default, the
complaint's factual allegations regarding liability are
taken as true. Geddes v. United Financial Group, 559
F.2d 557, 560 (9th Cir. 1977); Garamendi v. Henin,
683 F.3d 1069, 1080 (9th Cir. 2012). However, the
complaint's factual allegations relating to the amount of
damages are not taken as true. Geddes, 559 F.2d at
560. Accordingly, the amount of damages must be proven at an
evidentiary hearing or through other means. Microsoft
Corp. v. Nop, 549 F.Supp.2d 1233, 1236 (E.D. Cal. 2008).
“[N]ecessary facts not contained in the pleadings, and
claims which are legally insufficient, are not established by
default.” Cripps v. Life Ins. Co. of North
America, 980 F.2d 1261, 1267 (9th Cir. 1992). Pursuant
to Federal Rule of Civil Procedure 54(c), “[a] default
judgment must not differ in kind from, or exceed in amount,
what is demanded in the pleadings.”
of default judgment is not a matter of right and it is within
the discretion of the court whether default judgment should
be entered. Shanghai Automation Instrument Co. v.
Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001); Eitel
v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). The
Ninth Circuit has set forth the following factors for the
court to consider in exercising its discretion:
(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 policy underlying the Federal
Rules of Civil Procedure favoring decisions on the merits.
Eitel, 782 F.2d at 1471-72.
current application, Plaintiff seeks default judgment and
requests monetary damages, injunctive relief, and attorney
Subject Matter Jurisdiction
courts are courts of limited jurisdiction and their power to
adjudicate is limited to that granted by Congress. U.S v.
Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant to
28 U.S.C. § 1331, federal courts have original
jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.
“A case ‘arises under' federal law either
where federal law creates the cause of action or where the
vindication of a right under state law necessarily turns on
some construction of federal law.” Republican Party
of Guam v. Gutierrez, 277 F.3d 1086, 1088 (9th Cir.
2002) (internal punctuation omitted) (quoting Franchise
Tax Bd. v. Construction Laborers Vacation Trust, 463
U.S. 1, 8-9 (1983) (citations omitted)). “[T]he
presence or absence of federal-question jurisdiction is
governed by the ‘well-pleaded complaint rule, '
which provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff's properly pleaded complaint.”
Republican Party of Guam, 277 F.3d at 1089
brings this action alleging violations of the ADA, 42 U.S.C.
§§ 12101 et seq. Therefore, the Court has original
jurisdiction under 28 U.S.C. §§ 1331 and 1343 for
the ADA claims. In addition, the Court has supplemental
jurisdiction under 28 U.S.C. § 1367 for Plaintiff's
related state law claims under the Unruh Act and the
California Health and Safety Code.
Service of Process
of the Federal Rules of Civil Procedure sets forth the
requirements for the manner of service on an individual. Rule
4(e) states that an individual may be served by following
state law for service of the summons in the state where the
court is located or by personally delivering a copy of the
summons and a complaint, leaving a copy of each at the
individual's usual place of abode, or delivering a copy
of each to an agent authorized to receive service.
415.20 of the California Code of Civil Procedure permits
service by leaving the summons and complaint at the usual
place of business in the presence of a person apparently in
charge who is informed of the contents of the summons and
thereafter mailing a copy of the summons and of the complaint
to the defendant at that same place the summons and complaint
were left. Cal. Civ. Proc. Code § 415.20.
January 19, 2017, Plaintiff served a copy of the summons and
complaint on Defendants by leaving the documents with the
person apparently in charge at their business address during
regular business hours and informing the person of the
general nature of the papers. (ECF Nos. 5, 6.)
Plaintiff's counsel determined that Defendants'
business address was the facility itself. (March 24, 2017
Declaration of Zachary Best (“Best Decl.”) at
¶ 15.) Prior to effectuating substituted service,
service was attempted on January 17, 2017, and January 18,
2017. (ECF Nos. 5, 6.) Plaintiff then mailed the service
documents on January 23, 2017, to the address where the
summons and complaint were left.
the Court finds that service of process on Defendants was
proper under California law.
The Eitel Factors Weigh in Favor of Default
discussed below, consideration of the Eitel factors
weighs in favor of granting default judgment in this
Possibility of Prejudice to Plaintiff
first factor weighs in favor of entry of default judgment. If
default judgment is not entered, Plaintiff is effectively
denied a remedy for the violations alleged in this action
unless Defendants appear. Defendants may never appear in the
action. Therefore, this factor weighs in favor of granting
The Merits of Plaintiff's Substantive Claims and
Sufficiency of Complaint
court is to evaluate the merits of the substantive claims
alleged in the complaint as well as the sufficiency of the
complaint itself. In doing so, the court looks to the
complaint to determine if the allegations contained within
are sufficient to state a claim for the relief sought.
Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.
Americans with Disabilities Act
ADA plaintiff suffers a legally cognizable injury under the
ADA if he is ‘discriminated against on the basis of
disability in the full and equal enjoyment of the goods,
services, [or] facilities ... of any place of public
accommodation.' ” Chapman v. Pier 1 Imports
(U.S.) Inc., 631 F.3d 939, 952 (9th Cir. 2011) (quoting
42 U.S.C. § 12182(a)). As relevant here, discrimination
is defined as “a failure to remove architectural
barriers . . . where such removal is readily
achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv).
prevail on a Title III discrimination claim, the plaintiff
must show that (1) [he] is disabled within the meaning of the
ADA; (2) the defendant is a private entity that owns, leases,
or operates a place of public accommodation; and (3) the
plaintiff was denied public accommodations by the defendant
because of [his] disability.” Molski v. M.J. Cable,
Inc., 481 F.3d 724, 730 (9th Cir. 2007) (citing 42
U.S.C. §§ 12182(a)-(b)). “To succeed on an
ADA claim of discrimination on account of one's
disability due to an architectural barrier, the plaintiff
must also prove that: (1) the existing facility at the
defendant's place of business presents an architectural
barrier prohibited under the ADA, and (2) the removal of the
barrier is readily achievable.” Parr v. L & L
Drive-In Restaurant, 96 F.Supp.2d 1065, ...