Opinion
20-cv-08453-SVK
03-31-2021
SCOTT JOHNSON, Plaintiff, v. FERNMAR 041, L.P., Defendant.
ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE
REPORT AND RECOMMENDATION GRANTING MOTION FOR DEFAULT JUDGMENT AND COSTS AND DENYING REQUEST FOR FEES WITH LEAVE TO AMEND
RE: DKT. NO. 12
SUSAN VAN KEULEN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Scott Johnson (“Plaintiff”) brings this action against Defendant Fernmar 041, L.P. (“Defendant”), alleging violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq., and the California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code §§ 51-53. Dkt. 1. Plaintiff contends that at the times relevant to Plaintiff's Complaint, Defendant owned the real property located at 1659 Scott Blvd, Santa Clara, California 95050. Id. ¶¶ 2-3. Plaintiff seeks injunctive relief, statutory damages, and attorneys' fees and costs. Id.
Defendant has not appeared in the action or opposed the motion for default judgment and briefing on the matter is now closed. Civ. L.R. 7-3(a). Pursuant to Civil Local Rule 7-1(b), the Court deems the action to dismiss suitable for determination without oral argument.
Although Plaintiff has consented to the jurisdiction of the undersigned magistrate judge, Defendant has not consented. Dkt. 7. Accordingly, this Court directs the Clerk of the Court to REASSIGN this action to a district judge, with the following REPORT AND RECOMMENDATION that Plaintiff's motion for default judgment be GRANTED IN PART AND DENIED IN PART. If Defendant later consents to magistrate jurisdiction, the case may be reassigned to the undersigned magistrate judge.
I. BACKGROUND
According to the Complaint, Plaintiff is a level C-5 quadriplegic who uses a wheelchair for mobility and has a specially equipped van. Dkt. 1 ¶ 1; Dkt. 12-1 at 6; Dkt. 12-4 Declaration of Scott Johnson ¶¶ 2-3. Plaintiff's Complaint alleges that Defendant failed to provide wheelchair accessible parking and wheelchair accessible door hardware. Dkt. 1 ¶¶ 10-19. According to the proofs of service filed by Plaintiff, Defendant was served with the Summons and Complaint on December 15, 2020 by personal service to the agent for service of process Melissa F Freeman. Dkt. 8. Defendant has failed to answer the Complaint or to otherwise appear in this matter. At Plaintiff's request, the Clerk of the Court entered Defendant's default on January 27, 2021. Dkt. 11. Plaintiff now moves for default judgment against Defendant. Dkt. 12. Plaintiff filed a proof of service of the motion on Defendant. Dkt. 12-13. Defendant has not filed a response to the motion for default judgment.
II. LEGAL STANDARD
After entry of default, a court may, in its discretion, enter default judgment. See Fed. R. Civ. P. 55; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Before entering a default judgment, the Court must assess the adequacy of the service of process on the party against whom default is requested. See Trustees of ILWU-PMA Pension Plan v. Coates, No. C-11-3998 EMC, 2013 WL 556800, at *4 (N.D. Cal. Feb. 12, 2013) (internal quotation marks and citation omitted). The Court must also determine whether it has subject matter jurisdiction over the action and personal jurisdiction over the defaulted defendant. Id. at 3-4. If the Court concludes that the defaulted defendant was properly served and that the Court has jurisdiction, the Court must next consider whether default judgment is appropriate, considering seven factors set forth by the Ninth Circuit: “(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claims, (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 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 v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citation omitted). In considering these factors, the court takes all well-pleaded factual allegations in the complaint as true, except those concerning damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
III. DISCUSSION
A. Service of Process
As indicated above, “[i]n deciding whether to grant or deny default judgment, the Court must first assess the adequacy of the service of process on the party against whom default is requested because, if service was improper, that may well explain the failure of a defendant to appear in a lawsuit.” Folkmanis, Inc. v. Uptown Toys LLC, No. 18-cv-00955-EMC, 2018 WL 4361140, at *2 (N.D. Cal. Sept. 13, 2018) (internal quotation marks and citation omitted).
Plaintiff filed a proof of service of the Summons and Complaint on Melissa F. Freeman as agent for service of process. Dkt. 8. A sworn proof of service constitutes “prima facie evidence of valid service which can be overcome only by strong and convincing evidence.” Securities & Exchg. Comm'n v. Internet Solutions for Business, Inc., 509 F.3d 1161, 1166 (9th Cir. 2007). Accordingly, the Court finds that service of Defendant was proper.
B. Jurisdiction
When a plaintiff seeks entry of default judgment against a party who has failed to plead or otherwise defend, “a district court has an affirmative duty to look into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
Federal question jurisdiction is based on Plaintiff's ADA claim for relief. 28 U.S.C. § 1331. The Court has supplemental jurisdiction over his Unruh Act claim. 28 U.S.C. § 1367. The Court is also satisfied that personal jurisdiction exists over Defendant. The public records submitted with the present motion indicate that Defendant is domiciled in California and Defendant is a California limited partnership. Dkt. 12-1 at 9; Dkt. 12-7. The property that is subject of this action is in California and it is owned by Defendant. Dkt. 1 ¶ 2-3; Dkt. 12-1 at 9; Dkt. 12-7.
C. Eitel Factors
Having concluded that Defendant was properly served and the Court has jurisdiction, the Court next considers the Eitel factors and concludes that the majority of those factors weigh in favor of entering default judgment against Defendant. As discussed above, Defendant was served with copies of the summons and Complaint in this action. Defendant therefore had notice of these proceedings. Further, there is no indication that their failure to appear is due to excusable neglect or that there is any indication of a dispute concerning material facts (fifth and sixth factors).
Plaintiff's claims against Defendant are adequately pleaded and sufficient to find liability on the facts alleged, which must be taken as true (second and third factors). Declining to enter default judgment against the defaulted Defendant would prejudice Plaintiff (first factor) because Plaintiff has no other recourse against Defendant.
The amount of money at stake in this action is not significant (fourth factor), but default judgment is nevertheless appropriate because, as discussed below, the Court will award only the amount of money that comports with Federal Rule of Civil Procedure 54(c). See Joe Hand Promotions, Inc. v. Mujadidi, No. C-11-5570 EMC, 2012 WL 3537036, at *3 (N.D. Cal. Aug. 14, 2012) (noting that a request for maximum possible statutory damages “is not enough on its own to bar a default judgment . . . as it may be addressed by the Court in deciding what damages should be awarded, assuming that a default judgment is otherwise appropriate”).
Accordingly, entry of default judgment is appropriate because most of the Eitel factors favor entry of a default judgment and, taken together, those factors outweigh the general policy favoring decisions on the merits (seventh factor). See J & J Sports Productions, Inc. v. Deleon, No. 5:13-CV-02030-EJC, 2014 WL 121711, at *2 (N.D. Cal. Jan. 13, 2014).
IV. RELIEF TO BE AWARDED
The Court must next decide what relief should be awarded in the default judgment. Plaintiff requests that the default judgment include “an order requiring defendants [sic] provide wheelchair accessible parking space and wheelchair accessible door hardware.” Dkt. 12-1 at 17. Plaintiff also seeks statutory damages of $8,000 under the Unruh Civil Rights Act. Id. Plaintiff also seeks attorney's fees and costs pursuant to 42 U.S.C. § 12205 and Cal. Civ. Code § 52(a). Id. However, as explained below, Plaintiff's request for attorney's fees fails for failure of proof, as explained below.
A. Injunctive Relief
Plaintiff seeks “an order requiring defendants [sic] provide wheelchair accessible parking space and wheelchair accessible door hardware.” Dkt. 12-1 at 17. Aggrieved individuals “may obtain injunctive relief against public accommodations with architectural barriers, including ‘an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities.'” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (quoting 42 U.S.C. § 12188(a)(2)). Injunctive relief is also available under the Unruh Act. See Cal. Civ. C. § 52.1. “The standard requirements for equitable relief need not be satisfied when an injunction is sought to prevent the violation of a federal statute that specifically provides for injunctive relief.” Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175-76 (9th Cir. 2010), cert. denied, 563 U.S. 956 (2011) (citations omitted). Thus, injunctive relief is proper under the ADA where the plaintiff establishes that “architectural barriers at the defendant's establishment violate the ADA and the removal of the barriers is readily achievable.” Ridola v. Chao, No. 16-cv-02246-BLF, 2018 WL 2287668, at *13 (N.D. Cal. May 18, 2018) (citing Moreno v. La Curacao, 463 Fed.Appx. 669, 670 (9th Cir. 2011)).
Plaintiff has shown that he is entitled to injunctive relief with respect to an accessible parking space and wheelchair accessible door hardware. Accordingly, the Court recommends that Plaintiff's request for injunctive relief be granted with respect to an accessible parking space and wheelchair accessible door hardware. See Johnson v. Oakwood Ctr. LLC, No. 19-cv-01582-VKD, 2019 WL 7209040, at *9 (N.D. Cal. Dec. 27, 2019) (citation omitted).
B. Statutory Damages
Monetary damages are not available in private suits under the ADA. Molski, 481 F.3d at 730. However, the Unruh Act imposes liability for actual damages of no less than $4,000 “for each occasion an individual is denied equal access to an establishment covered by the Unruh Act.” Ridola, 2018 WL 2287668, at *15 (citing California Civil Code § 52(a)). The plaintiff need not prove that he suffered actual damages to recover these statutory damages. Molski, 481 F.3d at 731.
Plaintiff has sufficiently pleaded that the parking spaces and door hardware did not meet ADA standards on the two separate occasions he visited. Dkt. 1 ¶¶ 8-17. Thus, Plaintiff is entitled to statutory minimum damages under the Unruh Act, and the undersigned recommends the Court award $8,000 in statutory damages. See Johnson v. Cortese, No. 5:19-cv-02671-EJD, 2020 WL 7495164, at *7 (N.D. Cal. Dec. 21, 2020) (awarding $8,000 in statutory damages for the violations).
C. Attorneys' Fees and Costs
1. Attorneys' Fees
As an initial matter, the Court once again finds multiple discrepancies between Plaintiff's moving papers (Dkt. 12-1), the declaration of Russell Handy, Esq. (Dkt. 12-3), and the billing statement submitted with Mr. Handy's declaration (Dkt. 12-3 at 8-9). See Johnson v. Campbell et al, No. 5:20-cv-01455-EJD (N.D. Cal. Nov. 6, 2020), Dkt. 21 (recommending denying Plaintiff's request for attorneys' fees for failure of proof). The Court finds it troubling that counsel again neglects to identify the correct Plaintiff. Mr. Handy's declaration identifies “Plaintiff Samuel Love” rather than the actual Plaintiff in this matter, Scott Johnson. Dkt. 12-3 ¶ 1. Further, while Mr. Handy's declaration, which was signed under penalty of perjury, states that “[t]he fee statement attached to this declaration is a true and accurate reproduction of the work . . . that we seek reimbursement for in this case” (Dkt. 12-3 ¶ 2), there are multiple discrepancies between the motion (Dkt. 12-1), Mr. Handy's declaration (Dkt. 12-3), and the billing statement submitted with Mr. Handy's declaration (Dkt. 12-3 at 8-9). While the motion and the billing statement both state that Mr. Mark Potter and Mr. Handy charge $595 per hour, Mr. Handy's declaration states that Mr. Potter and Mr. Handy charge $650 per hour. Dkt. 12-1 at 23; Dkt. 12-3 ¶¶ 3-4; Dkt. 12-3 at 8-9. Additionally, while the motion indicates that Ms. Amanda Seabock charges $450 per hour, Mr. Handy's declaration states that Ms. Seabock bills at $500 per hour. Dkt. 12-1 at 23; Dkt. 12-3 ¶ 5. Ms. Faythe Gutierrez's hourly rate is the only one that appears to be consistent in the motion, the billing statement, and Mr. Handy's declaration. Dkt. 12-1 at 23; Dkt. 12-3 ¶ 6; Dkt. 12-3 at 8-9. Accordingly, the Court recommends denying the request for attorney's fees for failure of proof, with leave to amend the motion with proper accurate support.
The Court notes that Mr. Handy does not appear to have billed anything in this matter, according to the billing statement, so it is unclear why he was included in the motion and the declaration. Dkt. 12-3 at 8-9.
The Court also notes that Ms. Seabock does not appear to have billed anything in this matter, according to the billing statement, so it is unclear why she was included in the motion and the declaration. Id.
2. Costs
Plaintiff also seeks $850 in costs. Dkt. 12-1 at 24. This includes: (1) the filing fee ($400); (2) service costs ($50); and (3) investigation expenses ($400). The Court finds that Plaintiffs request for costs is reasonable. Accordingly, the Court recommends awarding $850 in costs.
V. CONCLUSION
For the reasons stated, the Court orders the Clerk to REASSIGN this case to a district judge, and the Court RECOMMENDS that:
1. Plaintiff s motion for default judgment be GRANTED as to Defendant.
2. Plaintiff s request for statutory damages is GRANTED in the amount of $8,000.
3. Plaintiff s request for attorney's fees is DENIED for failure of proof, with leave to amend.
4. Plaintiff s request for costs is GRANTED in the amount of $850.
5. Plaintiff be granted an injunction requiring Defendant to provide an accessible parking space and wheelchair accessible door hardware.
Plaintiff shall promptly serve Defendant with this Report and Recommendation and file a proof of service with the Court. Any party may file objections to this Report and Recommendation within fourteen days. Fed.R.Civ.P. 72(b)(2); Civ. L.R. 72-3.
SO RECOMMENDED.