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Volle v. Sherwin Petroleum, Inc.

United States District Court, N.D. California

January 16, 2020

DEBRA VOLLE, Plaintiff,



         The 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.


         The 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. 1, 6.

         The 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.

         On 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.

         Volle 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.[1] A General Order 56 joint site inspection took place on March 19, 2019. FAC ¶ 10 & Ex. A.

         On July 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.

         On 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.

         Magistrate 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


         A. Legal Standards

         1. Review of Report and Recommendation

         Review 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).

         “[W]hile 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.” Fed.R.Civ.P. 72(b)(3).

         2. Default Judgment

         Federal 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 ...

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