Opinion
21-cv-03365-JSC
02-03-2022
BRIAN WHITAKER, Plaintiff, v. THE LONELY PLANET LLC, Defendant.
ORDER OF REASSIGNMENT AND REPORT AND RECOMMENDATION TO DENY MOTION FOR DEFAULT JUDGMENT Re: Dkt. No. 14
JACQUELINE SCOTT CORLOT UNITED STATES MAGISTRATE JUDGE
Plaintiff obtained entry of Defendant's default on July 1, 2021. (Dkt. No. 11.) After four months of inactivity, the Court ordered Plaintiff to file a motion for default judgment or show cause why his case should not be dismissed for failure to prosecute, by November 10, 2021. (Dkt. No. 12.) Plaintiff moved for default judgment on December 10, 2021. (Dkt. Nos. 13, 14.) Upon review, the Court deferred ruling on the motion pending an additional showing by Plaintiff on or before January 26, 2022. (Dkt. No. 15 at 7.) To date, Plaintiff has not filed a supplemental declaration or memorandum.
Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents.
Because the unserved Defendant has not consented to the Court's jurisdiction, the Clerk of Court is ordered to REASSIGN this action to a district court judge. See Williams v. King, 875 F.3d 500, 501, 504 (9th Cir. 2017) (magistrate judge lacked jurisdiction to dismiss case on initial screening because unserved defendants had not consented to proceed before magistrate judge). The Court RECOMMENDS that the district judge DENY Plaintiff's motion for default judgment.
FACTUAL BACKGROUND
Plaintiff filed suit against The Lonely Planet LLC, alleging disability discrimination in violation of the Americans with Disabilities Act (“ADA”) and the California Unruh Act. (Dkt. No. 1 ¶¶ 22-32.) Plaintiff has a C-4 spinal cord injury, is a quadriplegic, and uses a wheelchair for mobility. (Id. ¶ 1; Dkt. No. 14-4 ¶ 1.) Defendant operates the N-Zone Uptown restaurant at 1707 Telegraph Avenue in Oakland, California. (Dkt. No. 1 ¶¶ 2-3; see Dkt. No. 14-7 at 2-7.) On April 25, 2021, Plaintiff visited the restaurant and discovered that the outdoor dining surfaces were more than 40 inches high, making them inaccessible to wheelchair users under ADA standards. (Dkt. No. 1 ¶¶ 8, 12; Dkt. No. 14-4 ¶¶ 2-3.) On May 2, 2021, an investigator with the Center for Disability Access visited the restaurant and took photos and measurements indicating that the outdoor dining surfaces were more than 40 inches high. (Dkt. No. 14-5 ¶¶ 2-4; Dkt. No. 14-6; see Dkt. No. 14-4 ¶ 5.) The lack of accessible dining surfaces has deterred Plaintiff from visiting the restaurant, but he would return if the restaurant is brought into full compliance with the ADA. (Dkt. No. 1 ¶ 20; Dkt. No. 14-4 ¶¶ 6-8.)
DISCUSSION
I. JURISDICTION AND SERVICE OF PROCESS
Courts have a duty to examine both subject matter and personal jurisdiction when default judgment is sought against a non-appearing party. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
A. Subject Matter Jurisdiction
The Court has federal question jurisdiction under 28 U.S.C. § 1331 because Plaintiff pleads violations of the ADA, 42 U.S.C. §§ 12101, et seq. The Court has supplemental jurisdiction under 28 U.S.C. § 1367(a) over Plaintiff's California Unruh Act claim, Cal. Civ. Code §§ 51-53, because it arises from the same nucleus of operative fact as Plaintiff's ADA claim.
B. Personal Jurisdiction
Courts have general personal jurisdiction over defendants who are domiciled in their district. See Walden v. Fiore, 571 U.S. 277, 283 n.6 (2014) (explaining that general jurisdiction “permits a court to assert jurisdiction over a defendant based on a forum connection unrelated to the underlying suit (e.g., domicile)”); Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (noting that corporation's principal place of business is paradigm basis for exercise of personal jurisdiction). Defendant has its principal place of business in the Northern District of California. (See Dkt. No. 14-7 at 2-7.) Thus, the Court has general jurisdiction over Defendant.
The Court notes that many of Plaintiff's supporting materials pertain to 1701 Telegraph Avenue, not 1707. (Dkt. No. 14-7 at 11-27.) Plaintiff has not established the relevance of 1701 Telegraph Avenue to this case.
“Serving a summons . . . establishes personal jurisdiction over a defendant who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed.R.Civ.P. 4(k)(1)(A). Here, personal jurisdiction arises from service upon Defendant in California. (See Dkt. No. 8.)
C. Service of Process
“[O]ne becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). The Court must assess whether the defendant against whom default judgment is sought was properly served with notice of the action, because improper service may explain the defendant's failure to appear. See Penpower Tech. Ltd. v. S.P.C. Tech., 627 F.Supp.2d 1083, 1088 (N.D. Cal. 2008).
Federal Rule of Civil Procedure 4(h) provides that a corporation may be served in the same manner prescribed by Rule 4(e)(1) for serving an individual, which allows for service in accordance with California law. Under California law, a corporation may be served by delivering a copy of the summons and the complaint to the “person designated as agent for service of process.” Cal. Code Civ. P. § 416.10(a). Here, Plaintiff effected personal service on Defendant's registered agent on May 30, 2021. (Dkt. No. 8; see Dkt. No. 14-7 at 7.) Accordingly, service was adequate.
II. DEFAULT JUDGMENT
After entry of default, the Court may grant default judgment on the merits of the case. Fed.R.Civ.P. 55. “The district court's decision whether to enter a default judgment is a discretionary one,” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980), guided by the following factors:
(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 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).
A. Possibility of Prejudice to Plaintiff
The first factor considers whether the plaintiff will suffer prejudice, such as being left without a legal remedy, if the Court declines to enter default judgment. Here, because Defendant did not respond to the complaint, Plaintiff's only recourse for his disability access claims is default judgment. See, e.g., Fudy Printing Co., Ltd. v. Aliphcom, Inc., No. 17-cv-03863-JSC, 2019 WL 2180221, at *3 (N.D. Cal. Mar. 7, 2019); Craigslist, Inc. v. Naturemarket, Inc., 694 F.Supp.2d 1039, 1054-55 (N.D. Cal. 2010). Therefore, this factor weighs in favor of default judgment.
B. Merits of Substantive Claims & Sufficiency of Complaint
The second and third factors, “often analyzed together,” require the plaintiff “to plead facts sufficient to establish and succeed upon its claims.” Dr. JKL Ltd. v. HPC IT Educ. Ctr., 749 F.Supp.2d 1038, 1048 (N.D. Cal. 2010); Craigslist, 694 F.Supp.2d at 1055. After entry of default, the factual allegations in the complaint related to liability are accepted as true and deemed admitted. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). “However, . . . facts which are not established by the pleadings of the prevailing party, or claims which are not well-pleaded, are not binding and cannot support the judgment.” Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978). “The district court is not required to make detailed findings of fact.” Fair Hous. of Marin, 285 F.3d at 906.
1. Article III Standing
To succeed on his claims, Plaintiff must first establish Article III standing. Plaintiff must demonstrate that he suffered an injury in fact, traceable to Defendant's actions, and redressable by a favorable court decision. Chapman v. Pier 1 Imps. (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011); see Johnson v. An Khang Mi Gia, No. 5:21-cv-01702-BLF, 2021 WL 5908389, at *3 (N.D. Cal. Dec. 14, 2021) (analyzing standing within second and third Eitel factors). To pursue injunctive relief under the ADA, Plaintiff must also demonstrate “a real and immediate threat of repeated injury in the future,” Chapman, 631 F.3d at 946 (cleaned up), which may take the form of having an intent to return or being deterred from returning due to accessibility barriers, id. at 950.
Plaintiff attests that he is deterred from returning to Defendant's restaurant due to the accessibility barriers he personally encountered there, but that he would return if the barriers are remedied. (Dkt. No. 14-4 ¶¶ 6-8.) Because Plaintiff's factual allegations are accepted as true, and an award of statutory damages and injunctive relief would redress the alleged injuries caused by Defendant's conduct, Plaintiff has Article III standing to pursue his claims.
2. ADA Claim
Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). “To prevail on a Title III discrimination claim, the plaintiff must show that (1) []he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). The third element may be shown where a defendant “fail[s] to remove architectural barriers . . . where such removal is readily achievable.” Chapman, 631 F.3d at 945 (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)).
a. Disabled
First, Plaintiff alleges that he is disabled within the meaning of 42 U.S.C. § 12102 because he is a paraplegic and uses a wheelchair for mobility. (Dkt. No. 1 ¶ 1; Dkt. No. 14-4 ¶ 1.) Section 12102(1)-(2)(A) defines “disability” as a physical or mental impairment that “substantially limits one or more major life activities” including “walking.” Thus, Plaintiff is disabled within the meaning of the ADA.
b. Public Accommodation
Second, Plaintiff alleges that Defendant owns and operates the N-Zone Uptown restaurant, which is “a facility open to the public, a place of public accommodation, and a business establishment.” (Dkt. No. 1 ¶¶ 2-3, 9; see Dkt. No. 14-7 at 2-7.) Title III identifies restaurants, bars, and other establishments that serve food and beverages as places of public accommodation. 42 U.S.C. § 12181(7)(B). Taking Plaintiff's allegations as true, he has established that Defendant owns, leases, or operates a public accommodation.
c. Architectural Barrier
Third, Plaintiff alleges that the restaurant's outdoor dining surfaces are more than 40 inches high, constituting an architectural barrier in violation of the 2010 ADA Accessibility Guidelines (“ADAAG”). Plaintiff's motion for default judgment relies on ADAAG 306, which governs “knee and toe clearance”-the space underneath a built element and above the floor. 36 C.F.R. § Pt. 1191, App. D, 306. However, neither the complaint nor the motion discusses knee or toe clearances. Rather, both allege that “[t]he outside dining surfaces were too high” at “more than 40 inches in height.” (Dkt. No. 14-1 at 6.) Thus, the relevant standard is ADAAG 902, which governs “dining surfaces and work surfaces.” 36 C.F.R. § Pt. 1191, App. D, 902.
“Where dining surfaces are provided for the consumption of food or drink, at least 5 percent of the seating spaces and standing spaces at the dining surfaces shall comply with 902.” Id. at 226.1. ADAAG 902.3 requires that “[t]he tops of dining surfaces . . . shall be 28 inches (710 mm) minimum and 34 inches (865 mm) maximum above the finish floor or ground.” Id. at 902.3. Plaintiff's complaint and supporting declarations indicate that the restaurant's outdoor dining surfaces were more than 40 inches high, (Dkt. No. 14-5 ¶¶ 2-4; Dkt. No. 14-6; see Dkt. No. 14-4 ¶ 5), and were therefore not compliant with ADAAG 902.3. However, there are no factual allegations as to the restaurant's indoor dining surfaces, if any. Likewise, no legal argument is presented as to whether the ADA requires 5% of all dining surfaces (indoor and outdoor combined) to comply with ADAAG 902.3, or 5% of indoor dining surfaces and outdoor dining surfaces respectively. As such, taking Plaintiff's factual allegations as true, he has not established that Defendant's restaurant had an architectural barrier in violation of ADAAG 226.1 or 902.3. See Johnson v. Tram Chim's Corp, No. 21-cv-01821-WHO, 2021 WL 6129054, at *1 (N.D. Cal. Nov. 8, 2021) (noting that plaintiff's failure to address “whether indoor dining was offered at that time, whether there were indoor ADA-[compliant] surfaces, [and] whether the ADA requires full access to outdoor dining when indoor dining is otherwise available . . . creates both evidentiary and legal gaps” that preclude default judgment).
The Court previously identified these deficiencies and gave Plaintiff the opportunity to respond, but Plaintiff did not respond or otherwise communicate with the Court. Accordingly, because Plaintiff has not established an element of his ADA claim, the claim does not satisfy the second and third Eitel factors. Moreover, Plaintiff's Unruh Act claim is predicated on the ADA claim. (Dkt. No. 1 ¶¶ 9-32.) As such, the Unruh Act claim also fails to satisfy the second and third Eitel factors. Molski, 481 F.3d at 731 (“[T]he Unruh Act is coextensive with the ADA[.]”); see Chapman, 779 F.3d at 1003 n.1 (“[Customer's] state claims are entirely dependent on his ADA claim. He does not allege any conduct beyond that alleged to violate the ADA.”).
* * *
The second and third Eitel factors go to the heart of the default judgment analysis. Plaintiff has not pleaded “facts sufficient to establish and succeed upon [his] claims,” nor has he persuaded the Court that ADAAG 226.1 or 902.3 entitle him to relief as a matter of law. Craigslist, 694 F.Supp.2d at 1055. Plaintiff's failure to establish that he is entitled to relief precludes default judgment. See Tram Chim's, 2021 WL 6129054, at *2.
CONCLUSION
Accordingly, the Court RECOMMENDS that the district judge DENY Plaintiff's motion for default judgment.
Any party may file objections to this report and recommendation with the District Judge within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2); N.D. Cal. Civ. L.R. 72-3. Failure to file an objection may waive the right to review of the issue in the district court.
IT IS SO RECOMMENDED.