Sepulveda v. Buelna, 20-cv-05258-TSH

REQUEST FOR REASSIGNMENT WITH REPORT & RECOMMENDATION RE: MOTION FOR DEFAULT JUDGMENT

RE: DKT. NO. 34

Thomas S. Hixson, United States Magistrate Judge

I. INTRODUCTION

Plaintiff Richard Sepulveda brings this case under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., to compel Defendants Sergio Buelna, Julia Contreras, and Robert and Jeanne Lovi to provide accessible parking, directional signage, an accessible path of travel, accessible outdoor seating, and an accessible service counter at their property. Sepulveda previously dismissed the Lovis after settling with them, and he now moves for default judgment against Buelna and Contreras (“Defendants”). ECF No. 34. Defendants have not opposed the motion and default has been entered against them. The undersigned finds this matter suitable for disposition without oral argument and VACATES the August 5, 2021 hearing. Civ. L.R. 7-1(b). As not all parties have consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), the Court requests this case be reassigned to a District Judge for disposition. After carefully reviewing the motion and controlling authorities, the undersigned RECOMMENDS the District Court GRANT the motion for the following reasons.

II. BACKGROUND

Sepulveda is a “physically handicapped person, ” as he is limited in the use of his legs and must use a walker. First Am. Compl. ¶ 6, ECF No. 17. On four occasions (April 27, 2020, May 7, 2020, June 13, 2020, and July 18, 2020), Sepulveda visited Defendants' restaurant, United Birrieria, located at 2170 Washington Ave., San Leandro, California, for the purpose of buying food and drink. Id. ¶¶ 3, 12. Buelna owns and operates the business, and Contreras owns the property.^[1] Id. ¶ 2. On the dates of his visits, Sepulveda alleges he found several barriers to his access: (1) the primary business entrance door lacks “the proper posted international symbol of Accessibility, ” such that “Plaintiff had difficulty in finding and using an accessible entrance”; (2) there was not a compliant path of travel from the parking area to the outside seating and the service counter; (3) the exterior seating was not accessible to disabled users; (4) the designated parking space for persons with disabilities is defective because there was no designated accessible space, there was no space with a proper passenger access aisle, and no tow-away sign; and (5) the service counter for placing orders was improperly configured.” Id. ¶ 4. Sepulveda plans to return to United Birrieria, but he is deterred from doing so because of his knowledge of the existing barriers and his uncertainty about the existence of yet other barriers on the site. Id. ¶¶ 14-15.

Sepulveda filed this case on July 30, 2020, bringing claims under the ADA, the California Unruh Civil Rights Act, Cal. Civ. Code § 51(f), which provides that a violation of the ADA is a violation of the Unruh Act, and analogous California disability access statutes. He filed the operative First Amended Complaint on January 14, 2021.

Sepulveda served Contreras on April 13, 2021, at the address of the subject business at 2170 Washington Avenue, San Leandro, CA, by sub-serving “Martin ‘Doe' - MANAGER, ” with subsequent mailing on April 14, 2021. ECF No. 28. Sepulveda served Buelna on May 10, 2021, at 2170 Washington Avenue by sub-serving “‘JOHN DOE' - MANAGER, ” with subsequent mailing on May 14, 2021. ECF No. 29. After Defendants failed to appear, the Clerk of Court entered default against Contreras on May 26, 2021 (ECF No. 31) and against Buelna on June 25, 2021 (ECF No. 33).

Sepulveda filed the present motion on June 30, 2021.

III. LEGAL STANDARD

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).

At the default judgment stage, the factual allegations of the complaint, except those concerning damages, “together with other competent evidence submitted” are deemed admitted by the non-responding parties. Shanghai Automation Instrument Co. v. Kuei, 194 F.Supp.2d 995, 1000 (N.D. Cal. 2001); see also Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (“With respect to the determination of liability and the default judgment itself, the general rule is that well-pled allegations in the complaint regarding liability are deemed true.”). “However, a defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law.” DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (citation and quotation omitted)). Therefore, “necessary facts not contained in the pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1267 (9th Cir. 1992) (citing Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)); accord DIRECTV, 503 F.3d at 854. Further, the scope of relief is limited by Federal Rule of Civil Procedure 54(c), which states that a “default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.”

In determining whether default judgment is appropriate, the Ninth Circuit has enumerated the following factors for courts 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 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).

IV. DISCUSSION

A. Jurisdiction and Service of Process

In considering whether to enter default judgment, a district court must first determine whether it has jurisdiction over the subject matter and the parties to the case. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). “[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (considering subject matter jurisdiction on a 12(b)(1) motion).

1. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction and are presumptively without jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court may dismiss an action on its own motion if it finds that it lacks subject matter jurisdiction. Fiedler v. Clark, 714 F.2d 77, 78-79 (9th Cir. 1983); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

Here, the Court has subject matter jurisdiction because Sepulveda asserts claims under the ADA, a federal statute. 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). The Court has supplemental jurisdiction over his Unruh Act claim because it arises from the same nucleus of operative facts and out of the same transactions as the ADA claim. 28 U.S.C. § 1367(a) (“in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy”).

2. Personal Jurisdiction

a. Basis for Personal Jurisdiction

To enter default judgment, the Court must have a basis for the exercise of personal jurisdiction over the defendants in default. In re Tuli, 172 F.3d at 712. “Without a proper basis for [personal] jurisdiction, or in the absence of proper service of process, the district court has no power to render any judgment against the defendant's person or property unless the defendant has consented to jurisdiction or waived the lack of process.” S.E.C. v. Ross, 504 F.3d 1130, 1138-39 (9th Cir. 2007). Traditional bases for conferring a court with personal jurisdiction include a defendant's consent to jurisdiction, personal service of the defendant within the forum state, or a defendant's citizenship or domicile in the forum state. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011). Absent one of the traditional bases for jurisdiction, the Due Process Clause requires that the defendant have “certain minimum contacts with the forum ‘such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.'” Int'l Shoe Co. v. State of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945) (citations and quotation marks omitted). The party seeking to invoke jurisdiction has the burden of establishing that jurisdiction is proper. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984). “[M]ere ‘bare bones' assertions of minimum contacts with the forum or legal conclusions unsupported by specific factual allegations will not satisfy a plaintiff's pleading burden.” Swartz v. KPMG LLP, 476 F.3d 756, 766 (9th Cir. 2007).

Here, the Court has personal jurisdiction over Contreras because she owns the property at issue. Mot., Ex. 1 (public records); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (“Specific jurisdiction . . . depends on an affiliation between the forum and the underlying controversy, principally, activity or an occurrence that takes place in the...