United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S
MOTION FOR DEFAULT JUDGMENT BE GRANTED IN PART (Doc. 11)
OBJECTIONS DUE: 21 DAYS
K. OBERTO UNITED STATES MAGISTRATE JUDGE
31, 2019, Plaintiff Peter Strojnik, Sr. filed a motion for
default judgment against Defendant The Victus Group, Inc.
d/b/a Sierra Sky Ranch. (Doc. 11.) No opposition to
Plaintiff's motion was filed. The Court has reviewed the
motion and supporting documentation and determined that the
matter was suitable for decision without oral argument
pursuant to Local Rule 230(g). As such, the motion was deemed
submitted on the papers and no hearing was scheduled.
reasons set forth below, the Court RECOMMENDS that
Plaintiff's motion for default judgment be GRANTED IN
PART and that Plaintiff be awarded the sum of $4, 447.
November 8, 2018, Plaintiff filed a complaint alleging claims
for negligence and violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq.; the California Unruh Act, California Civil
Code § 51 et seq.; and the California Disabled
Persons Act (“CDPA”), California Civil Code
§ 54 et seq. (Doc. 1.) The complaint seeks an
award of statutory, compensatory and punitive damages, costs
of suit, and injunctive relief. Id. Plaintiff alleges
that he “walks with difficulty and pain and requires
compliant mobility accessible features, ” and uses a
wheelchair, (Id. ¶¶ 4, 14), and the
property that is the subject of this suit, Sierra Sky Ranch
(“the Property”) presents numerous barriers that
interfere with his ability to use and enjoy the goods,
services, privileges, and accommodations offered at the
facility (Id. ¶ 10).
was served with the complaint on March 20, 2019. (Doc. 5.) To
date, Defendant has not responded to the complaint.
requested that the Clerk enter default against Defendants on
May 13, 2019, (Doc. 7), which was entered on May 15, 2019.
(Doc. 8.) On May 31, 2019, Plaintiff filed a motion for
default judgment against Defendant, which is currently
pending before the Court. (Doc. 11.)
3, 2019, the Court entered a minute order directing Defendant
to file its response in opposition to the motion by no later
than July 15, 2019, and allowing Plaintiff to file an
optional reply brief by no later July 29, 2019. (Doc. 12.)
The Court directed Plaintiff to file proof of service of the
minute order on Defendant by June 15, 2019. (Id.)
Plaintiff filed proof of service on June 18, 2019, stating
that he served the minute order on Defendant's registered
agent on June 13, 2019. (Doc. 14.) Defendant has not filed a
response in opposition to the motion and no other pleadings
were filed by the July 29, 2019 deadline.
Rule of Civil Procedure 55(b) permits a court-ordered default
judgment following the entry of default by the clerk of the
court under Rule 55(a). It is within the sole discretion of
the court as to whether default judgment should be entered.
See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980). A defendant's default by itself does not entitle a
plaintiff to a court-ordered judgment. See Id.
Instead, the Ninth Circuit has determined a court should
consider seven discretionary factors, often referred to as
the “Eitel factors, ” before rendering a
decision on default judgment. See Eitel v. McCool,
782 F.2d 1470, 1471-72 (9th Cir. 1986). The Eitel
factors include (1) the possibility of prejudice to the
plaintiff, (2) the merits of the plaintiffs 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. See id.
plaintiff is required to prove all damages sought in the
complaint. See Televideo Sys., Inc. v. Heidenthal,
826 F.2d 915, 917-18 (9th Cir. 1992). In addition, any relief
sought may not be different in kind from, or exceed in
amount, what is demanded in the complaint. Fed.R.Civ.P.
54(c). If the facts necessary to determine the 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.
once the court clerk enters a default, the well-pleaded
factual allegations of the complaint are taken as true,
except for those allegations relating to damages. See
Televideo Sys., Inc., 826 F.2d at 917.
The Eitel Factors Weigh in Favor of Granting a
Prejudice to Plaintiff if Default Judgment is Not
default judgment is not entered, Plaintiff will effectively
be denied a remedy until Defendant participates and makes an
appearance in the litigation - which may never occur. Denying
Plaintiff a means of recourse is, by itself, sufficient to
meet the burden imposed by this factor. See, e.g., Philip
Morris, USA, Inc. v. Castworld Prods., Inc., 219 F.R.D.
494, 499 (CD. Cal. 2003).
Merits of Plaintiff's Substantive Claims and the
Sufficiency of the Complaint
next relevant Eitel factors include an evaluation of
the merits of the substantive claims pled in the complaint as
well as the general sufficiency of the complaint. In weighing
these factors, courts evaluate whether the complaint is
sufficient to state a claim that supports the relief sought.
See Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.
1978); see also DIRECTV, Inc. v. Huynh, 503 F.3d
847, 854 (9th Cir. 2007) (“[A] defendant is not held to
admit facts that are not well-pleaded or to admit conclusions
of law.”) (internal quotation marks omitted).
Title III of the ADA
III of the ADA provides that “[n]o individual shall be
discriminated against on the basis of disability” in
places of public accommodation. 42 U.S.C. § 12182(a).
“Discrimination” is defined as a failure to
remove “barriers . . . where such removal is readily
achievable.” Id. at § 12182(b)(2)(A)(iv);
see also Chapman v. Pier 1 Imports (U.S.) Inc., 631
F.3d 939, 945 (9th Cir. 2011) (en banc). Where a
barrier's removal is not “readily achievable,
” a public accommodation must ...