Gilbert v. Shahi Assocs.

• Decision Date: 17 May 2022
• Docket Number: 1:21-cv-01375-DAD-SAB
• Parties: DARREN GILBERT, Plaintiff, v. SHAHI ASSOCIATES, INCORPORATED, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

DARREN GILBERT, Plaintiff, v. SHAHI ASSOCIATES, INCORPORATED, et al., Defendants.

No. 1:21-cv-01375-DAD-SAB

United States District Court, E.D. California

May 17, 2022

ORDER VACATING MAY 18, 2022 HEARING FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (ECF No. 23) FOURTEEN DAY DEADLINE

Currently before the Court is Plaintiff Darren Gilbert's motion for default judgment, filed on April 1, 2022. (ECF No. 23.) No oppositions were filed and the deadline to do so has now expired. Accordingly, the Court finds this matter suitable for decision without oral argument. See Local Rule 230(g). Thus, the hearing set for May 18, 2022, will be vacated and the parties will not be required to appear at that time. Having considered the moving papers, the declarations and exhibits attached thereto, supplemental briefing, as well as the Court's file, the Court issues the following findings and recommendations recommending Plaintiff's motion for default judgment be DENIED for inadequate service of the summons and complaint.

I. BACKGROUND

A. Procedural History

On September 14, 2021, Plaintiff filed this action against Defendants Dalvinder S. Shahi, Kasmir K. Shahi, and Shahi Associates Incorporated. (ECF No. 1.) On December 8, 2021 however, Plaintiff filed a notice of voluntary dismissal as to Defendant Shahi Associates Incorporated, who was thereafter dismissed from the action. (ECF Nos. 10, 14.) That same day, Plaintiff filed a first amended complaint adding Defendant Nirmal Kaur dba Waterford Market. (ECF No. 11.)

The proofs of service for Dalvinder Shahi and Kasmir Shahi indicate that Plaintiff served both Defendants with the summons and complaint by substituted service at 1351 Hartwick Ave., Turlock, California 95382 on September 29, 2021, by serving Defendants' co-occupant Randeep Shahi.^[1] (ECF Nos. 5, 6.) Thereafter, Plaintiff served his first amended complaint on these Defendants by mail to the same address. (ECF No. 12.)

As to Defendant Nirmal Kaur, the proof of service indicates Plaintiff served Kaur with the summons and first amended complaint by substituted service on December 17, 2021, by serving Harman Preet, a “coworker and person apparently in charge,” at Waterford Market, 12828 Yosemite Boulevard, Waterford, California 95386. (ECF No. 15.)

Defendants did not respond to the first amended complaint, and the Clerk of Court entered default against Dalvinder Shahi, Kasmir Shahi, and Nirmal Kaur on November 12, 2021. (ECF Nos. 16, 17, 18, 19.)

Plaintiff filed the instant motion against Defendants on April 1, 2022, seeking default judgment and injunctive relief. (ECF No. 23.) On April 5, 2022, the Court continued the hearing date, previously set for May 11, to May 18, 2022. (ECF No. 24.) Plaintiff was ordered to serve notice to all parties regarding the new hearing date, which was presumably done, although Plaintiff did not file any additional notice or proof of service with the Court. (Id.) As noted, no opposition to Plaintiff's motion has been filed.

B. Plaintiff's Allegations

The amended complaint asserts claims for violations of the Americans with Disabilities Act (“ADA”), California's Unruh Civil Rights Act (the “Unruh Act”), and California Health and Safety Code §§ 19953 et seq. (denial of full and equal access to public facilities) against Defendants, the purported owners/operators/leasers of the facility Waterford Market at 12828 Yosemite Boulevard, Waterford, California 95386. (ECF No. 11 at 1-2, 4-8.) Plaintiff alleges Waterford Market is a store open to the public, intended for non-residential use, its operation affects commerce, and it is a “public accommodation” as defined by 42 U.S.C. § 12181(7)(F). (ECF No. 11 at 2; ECF No. 23-1 at 3.)

Plaintiff alleges he is substantially limited in his ability to walk, and must use a wheelchair or prosthetic for mobility. (ECF No. 11 at 2.) Plaintiff lives less than twenty miles from Waterford Market. (ECF No. 11 at 2.) He visited the facility on June 18, 2021, to purchase refreshments. (ECF No. 11 at 2.) During the visit, Plaintiff alleges he encountered barriers that interfered with and denied his ability to use and enjoy the goods, services, privileges, and accommodations offered at the facility. (ECF No. 11 at 2-3.) More specifically, Plaintiff identifies the following barriers:

a) Plaintiff parked in the designated accessible parking space in the Facility's parking lot. He had difficulty walking to the Facility with his prosthetic leg, as the surface of the access aisle next to his vehicle and path of travel to the Facility entrance was rough and uneven, with large cracks and height changes . . . Accordingly, Defendants have failed to provide a level access aisle next to the designated accessible parking stall and an accessible route of travel from the designated accessible parking to the Facility entrance, in violation of 1991 ADAAG §§ 4.6.3 and 4.3.8 (see also 2010 Standards §§ 502.4 and 303)[; and]

b) There was an excessive slope in the floor in front of the transaction counter, which Plaintiff did not notice until he lost his balance and almost fell . . . Accordingly, Defendants have failed to provide a proper clear floor space in front of the transaction counter, in violation of 1991 ADAAG §§ 7.2 and 4.2.4.3 (see also 2010 Standards §§ 904.4 and 305.2) . . .

(ECF No. 11 at 3; ECF No. 23-1 at 5.) Plaintiff asserts the described barriers constitute noncompliance with the 1991 ADA Accessibility Guidelines (“1991 Standards”) and/or the 2010 ADA Standards for Accessible Design (“ADAAG”), as well as California Civil Code § 51 and Health and Safety Code §§ 19955(a) and 19959. (ECF No. 11 at 4-8.) Plaintiff further alleges Defendants knew or should have known of the barriers, and that they have the financial means to remove them but refuse to do so. (ECF No. 11 at 3, 5.) Plaintiff claims the obviousness of the barriers is sufficient to establish discriminatory intent. (ECF No. 11 at 4.)

As a result of the aforementioned barriers, Plaintiff contends Waterford Market's goods, services, facilities, privileges, advantages, and accommodations were unavailable to him due to his disability and Plaintiff was and continues to be deterred from visiting Waterford Market. (ECF No. 11 at 3.) Plaintiff seeks injunctive relief, statutory damages, and attorneys' fees and costs. (ECF No. 11 at 8; ECF No. 23-1 at 2.)

II. LEGAL STANDARD

“Our starting point is the general rule that default judgments are ordinarily disfavored,” as “[c]ases should be decided upon their merits whenever reasonably possible.” NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016) (quoting Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986)). Pursuant to Federal Rule of Civil Procedure (“Rule”) 55, obtaining a default judgment is a two-step process. Entry of default is appropriate as to any party against whom a judgment for affirmative relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure and where that fact is made to appear by affidavit or otherwise. Fed.R.Civ.P. 55(a). After entry of default, a plaintiff can seek entry of default judgment. Fed.R.Civ.P. 55(b). Rule 55(b)(2) provides the framework for the Court to enter a default judgment:

(b) Entering a Default Judgment.

(2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referral s--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting;

(B) determine the amount of damages;

(C) establish the truth of any allegation by evidence; or

(D) investigate any other matter.

Fed. R. Civ. P. 55.

The decision to grant a motion for entry of default judgment is within the discretion of the court. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172, 1174 (C.D. Cal. 2002); see also TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (“Rule 55 gives the court considerable leeway as to what it may require as a prerequisite to the entry of a default judgment.”). The Ninth Circuit has set forth the following seven factors (the “Eitel factors”) that the Court may consider in exercising its discretion: (1) the possibility of prejudice to the plaintiff; (2) the merits of the plaintiff's 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. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

Generally once default has been entered, “the factual allegations of the complaint, except those relating to damages, will be taken as true.” Garamendi v. Henin, 683 F.3d 1069, 1080 (9th Cir. 2012) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977)); see also Fed.R.Civ.P. 8(b)(6) (“An allegation - other than one relating to the amount of damages - is admitted if a responsive pleading is required and the allegation is not denied.”). Accordingly, the amount of damages must be proven at an evidentiary hearing or through other means. Microsoft Corp. v. Nop, 549 F.Supp.2d 1233, 1236 (E.D. Cal. 2008). Additionally, ...