Freemyer v. Kyrene Vill. Ii LLC

• Decision Date: 06 January 2011
• Docket Number: No. CV-10-1506-PHX-GMS,CV-10-1506-PHX-GMS
• Parties: Lisa Freemyer, an individual, Plaintiff, v. Kyrene Village II, LLC, a Delaware limited liability company, Defendant.
• Court: U.S. District Court — District of Arizona

Lisa Freemyer, an individual, Plaintiff,
v.
Kyrene Village II, LLC, a Delaware limited liability company, Defendant.

No. CV-10-1506-PHX-GMS

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Dated: January 6, 2011

REPORT AND RECOMMENDATION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

This case was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) by the assigned District Judge, the Hon. G. Murray Snow, on August 30, 2010 to conduct a Rule 55(b)(2), Fed.R.Civ.P., post-default damages hearing. (Doc. 9) This Magistrate Judge will recommend that default judgment be entered in favor of Plaintiff Lisa Freemyer ("Plaintiff) against Defendant Kyrene Village II, LLC, a Delaware limited liability company, for the reasons set forth in this Report and Recommendation.

I. Background

This is a disability discrimination case brought by a disabled plaintiff, suffering from multiple sclerosis and using a wheelchair for mobility, who encountered discriminatory barriers when she shopped at a Chandler, Arizona shopping center. Plaintiff brings this action pursuant to Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., and the Arizonans with Disabilities Act ("AzDA"), Arizona Revised Statutes ("A.R.S.") §§ 41-1492 to 41-1492.12. The District Court has subject-matter

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jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343 and supplemental jurisdiction over Plaintiff's state law claim pursuant 28 U.S.C. § 1367.

A. Allegations

The Complaint, filed on July 16, 2010, alleges that Defendant Kyrene Village II, LLC ("Kyrene Village") owns, operates, leases or leases to others a shopping center, known as Kyrene Village, located at the southwest corner of Chandler Boulevard and Kyrene Road in Chandler, Arizona. (Doc. 1, ¶ 4 at 2) Plaintiff contends that Kyrene Village shopping center is a "place of public accommodation" within the meaning of the ADA and AzDA. (Id., ¶ 5) The Complaint alleges that Plaintiff "suffers from multiple sclerosis and requires the use of a wheelchair for mobility" and "is a customer at Defendant's [shopping center] and has visited [it] regularly... to enjoy the goods and services at the shopping center, as Defendant offers them to non-disabled members of the public." (Id., ¶¶ 7-8) Plaintiff contends she "has suffered an injury under the ADA and AzDA because of her awareness of discriminatory conditions on the property and [is] deterred from visiting or patronizing the [shopping center]... as a direct result of Defendant's failure to remove discriminatory architectural features on the property." (Id., ¶¶ 10, 12 at 3) The Complaint seeks, inter alia, injunctive relief that Defendant remove existing barriers to access and that Defendant's shopping center be made accessible to, and usable by, individuals with disabilities as required by the ADA and AzDA; an award of attorney's fees, costs and litigation expenses pursuant to 42 U.S.C. 12205; and non-liquidated, compensatory damages under the AzDA. (Id. at 6)

B. Procedural requirements

Plaintiff has satisfied the procedural requirements for a default judgment pursuant to Fed.R.Civ.P. 55(a). First, Defendant Kyrene Village's Arizona statutory agent was properly served with process on July 26, 2010. (Doc. 5) Second, on August 25, 2010, the Clerk of Court properly entered default against Kyrene Village due to its failure to timely answer or otherwise respond to Plaintiff's Complaint. (Doc. 8) Third, Defendant Kyrene Village is not an infant, an incompetent person, in military service or otherwise exempted

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under the Soldiers' and Sailors' Civil Relief Act of 1940. See, Fed.R.Civ.P. 55(b)(2); 50 U.S.C.App. § 501, et seq. Fourth, Kyrene Village's statutory agent, Bruce I. Shapiro, Arizona Partners Retail Investment Group, LLC, located in Scottsdale, Arizona, was properly served with Plaintiffs application for default judgment, entitled Request for Post-Default Hearing, as required by Fed.R.Civ.P. 55(b)(2). (Doc. 7)

After notice, a default damages hearing was conducted in open court on December 17, 2010. (Doc. 20) The only witness testifying was Paul Farber, CAI/PE, of Farber Consulting, LLC, a Phoenix-based real estate compliance consulting firm. Mr. Farber represents himself as an accessibility inspector and plans examiner, certified by the International Code Council, and an independent ADA consultant since 2005. (Doc. 18-1, Exhibit ("Exh") A at 3) He claims to have "consulted and analyzed hundreds of properties in the Phoenix area for issues involving architectural accessibility for people with disabilities, and the methods and cost of barrier removal [and has] been recognized by the United States District Court, District of Arizona as an expert in the areas of ADA barrier identification, measurement, and the costs and methods of architectural barrier removal." (Id.)

The Court concludes that Mr. Farber qualifies as an expert witness by his knowledge, experience, and education to offer opinion testimony regarding the standards of accessibility set forth in the ADA Accessibility Guidelines ("ADAAG ") which is the product of reliable principles and methods properly applied to the facts and issues in this case. Rule 702, Fed.R. of Evid. Moreover, the Court concludes that his technical knowledge in this specialized area will assist the Court to understand the evidence and determine the facts and legal issues in this action. Id. On January 5, 2011, the Court visited Kyrene Village to view the ten (10) architectural features that are the basis of the Complaint and independently corroborate Mr. Farber's opinion testimony.

II. Legal Standard

Following entry of default, Rule 55(b)(2), Fed.R.Civ.P., permits a district court to enter final judgment in a case. Entry of default judgment, however, is not a matter of right. Warner Bros. Entm't Inc. v. Caridi, 346 F.Supp.2d 1068, 1071 (C.D. Cal. 2004). No party

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in default is entitled to notice under Rule 55 unless he has "appeared" in the action. Fed.R.Civ.P. 55(b)(2). If a party in default has "appeared, " the party must be served with written notice of the application for judgment at least three days prior to the hearing. Id. "Normally, an appearance in an action involves some presentation or submission to the court. But because judgments by default are disfavored, a court usually will try to find that there has been an appearance by defendant." Direct Mail Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 689 (9th Cir. 1988). It is unclear whether the September 24, 2010 non-lawyer Motion to Set Aside Default Judgment (sic), doc. 11, filed by "Trigild Inc., Receiver, William J. Hoffman, In Pro Per as Agent for Receiver" constitutes a valid appearance for Kyrene Village. Nevertheless, notice of Plaintiff's application for default judgment, entitled Request for Post-Default Hearing, was provided to Kyrene Village's statutory agent, Bruce I. Shapiro, Arizona Partners Retail Investment Group, LLC. (Doc. 7 at 2) Notice of the Court's November 18, 2010 order, setting the December 17, 2010 default damages hearing, was also mailed on the same day by the Clerk of Court to Trigild Inc., Receiver. See, Clerk's November 18, 2010 docket entry.

Entry of default judgment is entirely within the district court's sound discretion and may be refused if no justifiable claim has been alleged or a default judgment is inappropriate for other reasons. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Well-pled factual allegations in a complaint are taken as true, except for those allegations relating to damages. Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (citing TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987)); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977).

In determining damages or other requested relief, a district court may rely on the declarations submitted by the plaintiff or conduct a full evidentiary hearing. Fed. R. Civ. P. 55(b)(2). "A plaintiffs burden in 'proving up' damages is relatively lenient." Philip Morris USA, 219 F.R.D. at 498. "[F]undamental fairness, required by due process of law, limits the scope of relief[,]" id., which is, undoubtedly, why Rule 54(c), Fed.R.Civ.P.,

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proscribes that a "default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Rule 54(c), Fed.R.Civ.P. "In applying this discretionary standard, default judgments are more often granted than denied." Philip Morris USA, 219 F.R.D. at 498 (quoting PepsiCo, Inc. v. Triunfo-Mex, Inc., 189 F.R.D. 431, 432 (C.D.Cal. 1999)).

The Ninth Circuit has enumerated seven factors for a district court to consider in determining whether to grant a default judgment: (1) the merits of the plaintiff's substantive claim; (2) the sufficiency of the complaint; (3) the sum of money at stake in the action; (4) the possibility of prejudice to the plaintiff; (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 a decision on the merits. Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986); Truong Giany Corp. v. Twinstar Tea Corp, 2007 WL 1545173 (N.D. Cal. 2007). After considering and balancing all these factors, the Court finds that they weigh strongly in favor of entering the...