REASSIGNMENT ORDER AND REPORT AND RECOMMENDATION RE: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

Re: Dkt. No. 18

JACQUELINE SCOTT CORLEY, Magistrate Judge.

Plaintiff Samuel Love filed suit against Defendants James Griffin, Mary Griffin, and ESD Auto Repairs Inc. ("ESD") (collectively, "Defendants") alleging violations of the American Disability Act ("ADA") and California's Unruh Civil Rights Act (Cal. Civ. Code §§ 51-53). (Dkt. No. 1 at 5-7.)1 The Clerk entered default against Defendants James Griffin and Mary Griffin on May 2, 2018, (Dkt. Nos. 13 & 14), and against Defendant ESD on May 4, 2018, (Dkt. No. 16), after Defendants failed to appear or otherwise defend themselves in this matter. Now pending before the Court is Plaintiff's unopposed motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2). (Dkt. No. 18.)2 As Defendants have not appeared, the Court has not obtained consent from Defendants pursuant to 28 U.S.C. § 636; accordingly, this matter must be reassigned to a District Judge. The Court recommends that Plaintiff's motion for default judgment be granted as set forth below and VACATES the hearing scheduled for August 23, 2018.

BACKGROUND

I. The Parties

Plaintiff Samuel Love "is a California resident with physical disabilities." (Dkt. No. 1 at ¶ 1.) Mr. Love is a parapalegic who requires a wheelchair for mobility. (Dkt. No. 18-4 at ¶ 2.) Defendants James and Mary Griffin, "in representative and individual capacity as trustee of the Griffin Family Trust, own the real property located at or about 872 El Camino Real, South San Francisco, California." (Dkt. No. 1 at ¶ 3.) "Defendant ESD Auto Repairs Inc. owns the West Coast Auto Service ("West Coast Auto") located at or about 872 El Camino Real, South San Francisco, California." (Dkt. No. 1 at ¶ 5.)

II. Complaint Allegations

The complaint allegations are discussed in detail in Section III.B. Plaintiff alleges that he visited West Coast Auto in January 2018, and found no accessible parking spaces for persons with disabilities. (Id. at ¶ 10-16.) Plaintiff alleges that the lack of accessible parking is an illegal barrier that has deterred him from returning and patronizing West Coast Auto. (Id. at ¶ 21.) Plaintiff insists that West Coast Auto's lack of accessible parking violates both the ADA and the Unruh Civil Rights Act ("Unruh Act"). He seeks injunctive relief, statutory damages under the Unruh Act, and reasonable attorneys' fees and costs.

III. Procedural History

Plaintiff filed his complaint on February 15, 2018. (Dkt. No. 1.) Plaintiff successfully served summons and a copy of the complaint on Defendant ESD on February 27, 2018, and on Defendants James and Mary Griffin on March 2, 2018. (Dkt. Nos. 8-10.) On April 30, 2018, Plaintiff filed a motion for entry of default with the Clerk of the Court as to Defendants James and Mary Griffin, (Dkt. Nos. 11 & 12), and served notice to both, (Dkt. Nos. 11-2 & 12-2). The Clerk entered default on May 2, 2018. (Dkt. Nos. 13 & 14.) Plaintiff then filed a motion for entry of default as to Defendant ESD on May 3, 2018, (Dkt. No. 15), and served notice of the motion to ESD, (Dkt. No. 15-2). The Clerk entered default as to ESD on May 4, 2018, (Dkt. No. 16). On July 17, 2018, Plaintiff filed the instant motion for default judgment, (Dkt. No. 18), and served notice of the motion on all Defendants, (Dkt. No. 18-9).

DISCUSSION

I. Jurisdiction

Courts have an affirmative duty to examine their own jurisdiction—both subject matter and personal jurisdiction—when entry of default judgment is sought against a party in default. 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 American Disability Act, 42 U.S.C. §§ 12101, et seq. The Court has supplemental jurisdiction under 28 U.S.C. 1367(a) over Plaintiff's claim under California's Unruh Act, Cal. Civ. Code §§ 51-53, because it arises out of the same nucleus of operative fact as Plaintiff's ADA claims.

B. Personal Jurisdiction

Courts have general jurisdiction over defendants who are domiciled in their district. See Walden v. Fiore, 134 S.Ct. 1115, 1121 n.6 (2014) (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) (a corporation's principal place of business forms the "basis for exercise of personal jurisdiction"). James Griffin and Mary Griffin are domiciled in the Northern District of California. (Dkt. No. 8-9.) Likewise, ESD has its principal place of business in the Northern District.3 Thus, the Court has general jurisdiction over the Defendants.

"Serving a summons or filing a waiver of service 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 the parties in California. (See Dkt. Nos. 8-10.)

II. Service

"One becomes a party officially, and is required to take action in that capacity, only upon service of summons or other authority-asserting measure." Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). In deciding whether to grant or deny a motion for default judgment, the Court must "assess the adequacy of the service of process on the party against whom default is requested" because improper service may explain the failure of a defendant to appear in a lawsuit. Sanrio Co. v. J.I.K. Accessories, No. C-09-0440 EMC, 2012 WL 1366611, at *2 (N.D. Cal. Apr. 19, 2012).

Federal Rule of Civil Procedure 4(e)(2)(A) provides that an individual may be served by delivering a copy of the summons and complaint to the individual personally. Here, Defendants James Griffin and Mary Griffin were personally served on March 2, 2018. (Dkt. Nos. 8 & 9.) Service was therefore proper.

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. California law further provides that "[i]n lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10 . . . a summons may be served by leaving a copy of the summons and complaint . . . at his or her usual mailing address . . . with a person at least 18 years of age, who shall be informed of the contents thereof." Cal. Code Civ. P. § 415.20(a). Additionally, a copy of the summons and complaint must be mailed "by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left." Id. Here, Plaintiff successfully served Defendant ESD's registered agent for service of process by substitute service in accordance with section 415.20 on February 25, 2018. (Dkt. No. 10 at 1.) Plaintiff then mailed a copy of the summons to ESD via first-class mail on February 27, 2018. (Id. at 3.) Thus, the Court finds that service on the corporate defendant was likewise proper.

III. Default Judgment

After entry of default, a court may grant default judgment on the merits of the case. Fed. R. Civ. P. 55. The factual allegations of the complaint, except those concerning damages, are deemed to have been admitted by the non-responding party. Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). "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). Courts consider the following factors in determining whether to enter default judgment:

Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

A. Possibility of Prejudice to the Plaintiff

The first Eitel factor considers whether the plaintiff will suffer prejudice if the court denies default judgment. Craiglist, Inc. v. Naturemarket, Inc., 694 F.Supp.2d 1039, 1054 (N.D. Cal. 2010). Plaintiff contends that he has suffered, and continues to suffer discrimination due to physical disability based on Defendants' failure to provide an accessible parking space at West Coast Auto. Plaintiff insists that he "would like to return and patronize West Coast [Auto] but will be deterred from visiting until defendants cure the violations." (Dkt. No. 1 at 17.) Absent the Court's entry of default judgment, Plaintiff has no recourse to enjoin Defendants to cure the claimed ADA and Unruh Act violations. Accordingly, this factor weighs in favor of default judgment.

B. Merits of Claim and Sufficiency of Complaint

The second and third Eitel factors require the plaintiff to state a claim upon which it can recover. Plaintiff pleads two claims: (1) violation of the ADA; and (2) violation of the Unruh Act.

1. 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 v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (quoting 28 U.S.C. § 12182(b)(2)(A)(iv)).

First, Plaintiff alleges that he is disabled within the meaning of 42 U.S.C. § 12102(2)(A); specifically, that he is a paraplegic who requires a wheelchair for mobility. (Dkt. No. 1 at ¶ 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.

Second, Plaintiff alleges that Defendants James Griffin and Mary Griffin own the real property on which West Coast Auto is located, that Defendant ESD owns and operates West Coast Auto, and that the "facility [is] open to the public, a place of public accommodation, and a business establishment." (Id. at ¶¶ 2-5, 11.) Title III identifies "service establishment[s]" as places of public accommodation subject to the ADA. Taking Plaintiff's allegations as true, he has established that Defendants own, lease, or operate a public accommodation.

Third, Plaintiff alleges that West Coast Auto lacks an accessible parking space, in contravention of the ADA Accessibility Guidelines ("ADAAG"), constituting an architectural barrier that prevents him from full and equal access to West Coast Auto. "Under both the 1991 and 2010 ADAAG standards, any business that provides parking spaces must provide [accessible] parking spaces conforming to the Guidelines' specifications." Lozano v. C.A. Martinez Family Ltd. P'ship, 129 F.Supp.3d 967, 972 (S.D. Cal. 2015) (citing 28 C.F.R. pt. 36, App. D, § 4.1.2(5).

Id. Plaintiff alleges that West Coast Auto has no "van accessible" spaces. (Dkt. No. at ¶ 27.) Further, Plaintiff alleges that "there used to be an accessible parking space in the parking lot but it has been allowed to fade or get paved over." (Id. at ¶ 14.) Thus, Plaintiff insists that "[D]efendants have failed to maintain in working and useable conditions those features required to provide access to persons with disabilities." (Id. at ¶ 18.) As for whether removal of this barrier is "readily achievable," Plaintiff alleges that it is "easily removed without much difficulty or expense," and "there are numerous alternative accommodations that could be made to provide a greater level of access if complete removal were not achievable," such as painting "a parking stall and access aisle and install[ing] proper signage." (Id. at ¶¶ 19-20.) Indeed, 28 C.F.R. § 36.304(b)(18) lists "[c]reating designated accessible parking spaces" as a "readily achievable" step to remove barriers. Thus, Plaintiff's allegations are sufficient to satisfy the third element of a Title III discrimination claim, and he has therefore stated a cause of action under the ADA.

2. Unruh Act Claim

"A violation of the ADA is, by statutory definition, a violation of . . . the Unruh Act." Cullen v. Netflix, Inc., 880 F.Supp.2d 1017, 1023 (N.D. Cal. 2012); Cal. Civ. Code § 51(f). "Because the Unruh Act is coextensive with the ADA and allows for monetary damages, litigants in federal court in California often pair state Unruh Act claims with federal ADA claims." Molski, 481 F.3d at 731. The Unruh Act provides, in pertinent part:

Cal. Civ. Code § 51(b). Because Plaintiff has adequately pled a Title III discrimination claim under the ADA, he has adequately pled a violation of the Unruh Act. See Molski, 481 F.3d at 731 ("Any violation of the ADA necessarily constitutes a violation of the Unruh Act."). Taking the facts alleged in the complaint as true, the Court concludes that Plaintiff has stated claims for disability discrimination under the ADA and the Unruh Act. Accordingly, the second and third Eitel factors favor entry of default judgment on Plaintiff's claims.

C. Money at Stake

Under the fourth Eitel factor, the Court must consider the amount of money at stake in relation to the seriousness of defendant's conduct. Eitel, 782 F.2d at 1471-72. "Default judgment is disfavored where the sum of money at stake is too large or unreasonable in light of defendant's actions." Truong Giang Corp. v. Twinstar Tea Corp., No. C 06-03594 JSW, 2007 Wl 1545173, at *12 (N.D. Cal. May 29, 2007). Here, Plaintiff seeks a judgment of $9195.00, which includes statutory damages under the Unruh Act and reasonable attorneys' fees and costs. This amount, plus any amount necessary to comply with an injunction (i.e., designating a "van accessible" parking space), is reasonable in light of Defendants' failure to appear and defend against Plaintiff's adequately pled claims.

D. Dispute Over Material Facts

The material facts are not likely in dispute. Plaintiff's complaint adequately alleges disability discrimination in violation of both the ADA and the Unruh Act based on West Coast Auto's lack of an accessible parking space. Defendants have failed to appear and have therefore admitted all material facts alleged in Plaintiff's complaint. See Geddes, 559 F.2d at 560 ("The general rule of law is that upon default the factual allegations of the complaint, except those relating to damages, will be taken as true."). Furthermore, evidence submitted by Plaintiff in support of his motion for default judgment—photographs of West Coast Auto's parking lot as of February 2018—support Plaintiff's allegations that the lot contains no designated "van accessible" parking. (See Dkt. No. 18-6 at 2-9.) In the absence of any likely factual disputes, this factor favors entry of default judgment against Defendants.

E. Excusable Neglect

There is no basis to conclude that Defendants' default resulted from excusable neglect. The record indicates that all Defendants were properly served with the summons and complaint, (Dkt. Nos. 8-10), the motion for clerk's entry of default, (Dkt. Nos. 11-2, 12-2, 15-2), and the instant motion for default judgment, (Dkt. No. 18-9). See Shanghai Automation Instrument Co., Ltd. v. Kuei, 194 F.Supp.2d 995, 1005 (N.D. Cal. 2001) ("[D]efault of defendant . . . cannot be attributed to excusable neglect[]" because "[a]ll were properly served with the Complaint, the notice of entry of default, as well as the papers in support of the instant motion.") Accordingly, this factor favors entry of default judgment.

F. Policy Favoring Decision on the Merits

"Cases should be decided on upon their merits whenever reasonably possible." Eitel, 782 F.2d at 1472. This factor is not dispositive, however, and "Defendant[s'] failure to answer Plaintiff[`s] Complaint makes a decision on the merits impractical, if not impossible." PepsiCo, 238 F. Supp. 2d at 11. Termination of a case before hearing the merits is permissible when a defendant fails to defend an action. Id. Therefore, the last Eitel factor is neutral.

Considered together, the Eitel factors weigh in favor of granting Plaintiff's motion for default judgment.

IV. Remedies

As noted, Plaintiff seeks injunctive relief, statutory damages under the Unruh Act, and attorneys' fees and costs. The Court addresses Plaintiff's requested remedies below.

A. Injunctive Relief

Plaintiff requests injunctive relief under the ADA and Unruh Act compelling Defendants to remove the unlawful barriers to access at West Coast Auto and designate accessible parking in compliance with the ADAAG. Injunctive relief is available under both the ADA, 42 U.S.C. § 12188(a)(2), and the Unruh Act, Cal. Civ. Code § 52.1(b). For violations of the accessibility provisions of the ADA, "injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individual with disabilities." 42 U.S.C. § 12188(a)(2). A plaintiff need not satisfy "[t]he standard requirements for equitable relief . . . when an injunction is sought to prevent the violation of a federal statute [that] specifically provides for injunctive relief." Moeller v. Taco Bell, 816 F.Supp.2d 831, 859 (N.D. Cal. 2011) (internal quotation marks and citation omitted). Thus, to obtain an injunction under Section 12188(a)(2), a plaintiff need only demonstrate that "certain barriers at [d]efendant's establishment violated the ADA and that removal of th[ose] barriers was `readily achievable.'" Moreno v. La Curacao, 463 Fed. Appx. 669, 670 (9th Cir. 2011) (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)). As discussed above, Plaintiff has done so here. Accordingly, the Court recommends that Plaintiff's request for injunctive relief be granted.

B. Money Damages Under the Unruh Act

In assessing the appropriate amount of damages on default judgment, the Court does not presume the truth of any factual allegations related to the amount of damages. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). "The moving party has the burden to prove up" the amount of damages. United States v. Sundberg, No. C-09-4085 EMC, 2011 WL 3667458, at *6 (N.D. Cal. Aug. 22, 2011).

Here, Plaintiff requests "a single statutory minimum penalty assessment of $4,000.00" under the Unruh Act. The Unruh Act provides for such damages, and states that violations of the Act will "in no case" result in less than $4,000.00 in damages. Cal. Civ. Code § 52(a). Furthermore, "[t]he litigant need not prove [he] suffered actual damages to recover the independent statutory damages of $4,000." Molski, 481 F.3d at 731. It is sufficient instead to "establish[] that he . . . was denied equal access on a particular occasion." Botosan v. Paul McNally Realty, 216 F.3d 827, 835 (9th Cir. 2000) (internal quotation marks and citation omitted). A plaintiff can do so by demonstrating that "violations of applicable California disability standards deterred him . . . on a particular occasion from attempting to enter a place of public accommodation." Id. (finding that "Appellee has established a case for an award of statutory minimum damages" where the "record [was] undisputed that Appellants did not provide handicapped parking on at least one occasion when Appellee attempted to become a customer.").

Here, Plaintiff has adequately pled that Defendants' failure to provide an accessible parking space deterred him from attempting to enter West Coast Auto on at least one occasion in January 2018. Thus, he is entitled to statutory minimum damages under the Unruh Act. Accordingly, the Court recommends granting Plaintiff's request for money damages in the amount of $4,000.00.

C. Attorneys' Fees and Costs4

The ADA and Unruh Act both authorize a prevailing plaintiff to recover reasonable attorneys' fees and costs. 42 U.S.C. § 12205; Cal. Civ. Code § 52.1(h). Here, Plaintiff seeks attorneys' fees and costs in the amount of $5,195.00. (Dkt. Nos. 18-1 at 10 & 18-3 at 2-8.) To calculate attorneys' fees, "the district court applies the lodestar method, multiplying the number of hours reasonably expended by a reasonable hourly rate." Ryan v. Editions Ltd. W7., Inc., 86 F.3d 754, 763 (9th Cir. 2015) (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). "A reasonable hourly rate is ordinarily the prevailing market rate in the relevant community." Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (internal quotation marks and citation omitted). "[T]he burden is on the fee applicant to produce satisfactory evidence—in addition to the attorneys' own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Camancho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) (internal quotation marks and citation omitted). Additionally, the party requesting fees bears "the burden of submitting billing records to establish that the number of hours" requested are reasonable. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The number of hours should not exceed the number of hours reasonable competent counsel would bill. Hensley, 461 U.S. at 434.

Plaintiff seeks attorneys' fees in the amount of $4505.00. In support, Plaintiff submitted the declaration of Dennis Price. (Dkt. No. 18-3.) Mr. Price's declaration includes brief summaries of the professional experience and qualifications of four attorneys who presumably worked on Plaintiff's case: (1) "Russell"; (2) Phyl Grace; (3) Christina Carson; and (4) Dennis Price. (Dkt. No. 18-3 at ¶¶ 7-10.) Mr. Price's declaration also includes a billing summary listing descriptions of work performed and time billed by, and the hourly rates of, the following five attorneys: (1) "M. Potter"; (2) "R. Handy"; (3) "I. Masanque"; (4) "P. Grace"; and (5) "D. Price." (Id. at 8.) The billing summary does not entirely align with the individuals described by Mr. Price. In light of this discrepancy, on August 2, 2018, the Court requested supplemental submission in the form of an affidavit that provides a complete and accurate description of the professional experience, qualifications, and hourly rates of the attorneys listed in the billing summary. The Court ordered Plaintiff to submit the affidavit by August 9, 2018. Plaintiff failed to do so.

Accordingly, the Court addresses the fees of the only two attorneys who are included in both Mr. Price's declaration and the billing summary: Phyl Grace and Dennis Price. Ms. Grace is an experienced litigator who has practiced law "for almost 24 years." (Dkt. No. 18-3 at ¶ 8.) She has "focused exclusively on disability access litigation for the last ten years." (Id.) Ms. Grace drafted several documents for this litigation, billing 0.8 hours at a rate of $425.00 per hour. Her total fees are $340.00. The Court finds that amount reasonable given Ms. Grace's experience and the work performed.

Mr. Price is also an experienced litigator who has "participated in prosecuting well over 500 ADA cases in state and federal courts" in his eight years of practice. (Dkt. No. 18-3 at ¶ 10.) During the course of this litigation, Mr. Price met with Plaintiff and drafted Plaintiff's declaration for default judgment; met with the investigator and drafted the investigator's declaration; and drafted the default judgment and his own declaration. Mr. Price billed 2.5 hours at a rate of $350 per hour; his total fees are $875.00. The Court finds that amount reasonable.

Accordingly, the Court recommends granting attorneys' fees in the amount of $1,215.00. Further, the Court finds that Plaintiff has submitted sufficient evidence in support of his litigation costs—$200.00 for his investigator; $400.00 in filing fees; and $90.00 in service costs. The Court thus recommends awarding costs in the full amount of $690.00, resulting in total fees and costs of $1,905.00.

CONCLUSION

In line with the foregoing, the Court recommends that the newly-assigned district court judge GRANT Plaintiff's motion for default judgment on his ADA and Unruh Act claims in the total amount of $5905.00, consisting of $4,000.00 in statutory damages and $1,905.00 in fees and costs. Furthermore, the Court recommends granting Plaintiff's request for injunctive relief under the ADA and Unruh Act compelling Defendants to remove the unlawful barriers to access at West Coast Auto and designate accessible parking in compliance with the ADAAG.

Any party may file objections to this Report and Recommendation with the district judge within fourteen days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); N.D. Cal. Civ. L.R. 72. Failure to file an objection may waive the right to review of the issue in the district court.

IT IS SO ORDERED.