United States District Court, N.D. California
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
REGARDING MOTION FOR DEFAULT JUDGMENT
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
court has reviewed Magistrate Judge Cousins' Report and
Recommendation Re: Motion for Default Judgment. No.
objections to the report have been filed. The court finds the
report correct, well-reasoned and thorough insofar as it
found defendant Sherwin Petroleum, Inc.'s liability in
some respects established by the well-pleaded allegations of
the operative complaint, and insofar as it assessed the
appropriate scope of injunctive relief. Accordingly, the
court adopts the report in those respects. The court however,
addresses defendant's liability in other respects, as
well as plaintiff's requests for fees, costs, and
expenses, as follows.
pending motion for default judgment concerns an action
brought pursuant to the Americans with Disabilities Act, 42
U.S.C. §§ 12101 et seq. (“ADA”), and
the Unruh Act, Cal. Civ. Code §§ 51 et seq., by
individual plaintiff Debra Volle against defendant Sherwin
Petroleum, Inc. (“Sherwin Petroleum” or
“defendant”). Azim Modarressi was named as a
codefendant in the original complaint, but plaintiff
voluntarily dismissed him from the action without prejudice
twelve days after filing that complaint. See Dkts.
court recounts the allegations of the First Amended Complaint
(“FAC”) for purposes of this motion. See
FAC, Dkt. 16. Volle has been physically disabled for over a
decade after having undergone multiple back surgeries that
resulted in the severing of a nerve. Plaintiff depends on a
scooter or a walker for mobility, and she is a resident of
San Jose, California.
November 27, 2018, Volle visited a gas station operated by
defendant with a friend to purchase a lottery ticket.
Plaintiff was unable to enter the gas station's food mart
because the ramp to the front entry door was steep and had
steep, flared sides that were unable to accommodate her
scooter or walker. The path at the top of the ramp was also
blocked by outside seating. Additionally, the width of the
path by the front door was less than 48 inches, and the front
door clear space at push side was less than 48 inches and did
not have 24 inches clear space at pull side. Rather than
attempting to enter in the face of those conditions,
plaintiff waited outside the mart as her friend made a
purchase. Plaintiff left feeling like a second-class citizen
and has been deterred on “multiple occasions”
from returning to the gas station. See FAC ¶ 8.
filed this action on January 30, 2019. Dkt. 1. Volle served
the defendant's authorized agent, Mohammad Hossein
Beirami, with the summons and complaint on February 7, 2019.
Irakli Decl., Exs. AA & DD. A General Order 56 joint site
inspection took place on March 19, 2019. FAC ¶ 10 &
10, 2019, Volle filed an amended complaint incorporating
findings from the site inspection. See FAC. On July
17, 2019, plaintiff served the amended complaint on Sherwin
Petroleum's agent, Mohammad Beirami. See Irakli
Decl., Ex. BB. The complaint seeks injunctive relief,
damages, and recovery of attorneys' fees and costs. The
Clerk of Court entered default against Sherwin Petroleum on
August 27, 2019. Dkt. 22.
September 30, 2019, plaintiff filed a motion for default
judgment. Mot., Dkt. 27-1. The magistrate judge's deputy
received an email from Mohammad Beirami on October 6, 2019,
indicating his intention to represent Sherwin Petroleum in
the case. See Dkt. 30. The magistrate judge referred
Mr. Beirami to a program offering free assistance for pro se
litigants and advised him that, if he was not an attorney, he
could not represent Sherwin Petroleum because Sherwin
Petroleum is a corporation. Id. Sherwin Petroleum
has not made an appearance in this action.
Judge Cousins issued a report and recommendation recommending
granting the motion and awarding plaintiff $12, 000 in
statutory damages, $10, 664.50 in attorneys' fees and
costs, and injunctive relief requiring modification of the
property by November 30, 2020. Dkt. 33. No. party has
objected to that report and recommendation, and the deadline
to do so has passed
Review of Report and Recommendation
of a magistrate judge's report and recommendation
regarding a dispositive motion is governed by Federal Rule of
Civil Procedure 72(b). “Within 14 days after being
served with a copy of the recommended disposition, a party
may serve and file specific written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b)(2). “The district judge must determine de novo
any part of the magistrate judge's disposition that has
been properly objected to.” Fed.R.Civ.P. 72(b)(3).
the statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude further
review by the district judge, sua sponte or at the request of
a party, under a de novo or any other standard.”
Thomas v. Arn, 474 U.S. 140, 154 (1985) (discussing
case where “the District Judge made a de novo
determination of the petition despite petitioner's
failure even to suggest that the Magistrate erred”);
see also Piolin Prods., Inc. v. Velez, No.
07-cv-05245-RMW, 2008 WL 3380806, at *1 (N.D. Cal. Aug. 8,
2008) (“Of course, a party that has never made an
appearance also cannot file an objection to the magistrate
judge's report and recommendation. To be cautious then,
the court has reviewed de novo the entirety of [Magistrate]
Judge Spero's report regarding the facts[.]”).
“The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.”
Rule of Civil Procedure 55(b)(2) permits a court, following
default by a defendant, to enter default judgment in a case.
“The district court's decision whether to enter
default judgment is a discretionary one.” Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). To assist
courts in determining whether default judgment in
appropriate, the Ninth Circuit has enumerated the following
factors for the court to consider: (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 dispute concerning material facts; (6) whether default was