1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

SCOTT JOHNSON,

10 Case No. 21-cv-08475-RS Plaintiff, 11 v. ORDER DENYING MOTION FOR 12 DEFAULT JUDGMENT

QOLOR LLC,

13 Defendant. 14

15 I. INTRODUCTION 16 Plaintiff Scott Johnson moves for default judgment against Qolor LLC in this action 17 brought under the Americans with Disabilities Act (“ADA”) and the Unruh Civil Rights Act. 18 Johnson seeks damages, attorneys’ fees and costs, and an injunction requiring Qolor to provide 19 wheelchair accessible outside dining surfaces at Qolor’s Nam Giao Restaurant. Johnson argues he 20 was denied public accommodations because the outdoor dining tables were not ADA-compliant. 21 However, his Complaint does not aver any facts about the indoor dining facilities, among other 22 deficiencies. Thus, it is unclear whether his complaint is meritorious; at the least, it makes default 23 judgment inappropriate at this juncture. For the reasons further set out below, the motion is 24 denied, without prejudice as to a renewed motion should the Complaint be amended. 25 II. BACKGROUND 26 Johnson, a wheelchair-bound quadriplegic with significant manual dexterity impairments, 27 filed this action on October 31, 2021, after visiting Nam Giao Restaurant three times in the month 1 accessible. Johnson requested Entry of Default after showing that the complaint and summons 2 were served on a person who seemed to be “in charge” (and also served by mail). The clerk 3 entered the default on March 4, 2022. Qolor has not answered at any point during the lawsuit. 4 III. LEGAL STANDARD 5 Following entry of default, courts may exercise their discretion as to whether default 6 judgment should be entered. See Fed. R. Civ. P. 55; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th 7 Cir. 1980). In doing so, they must consider: (1) the possibility of prejudice to the plaintiff; (2) the 8 merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4) the sum of money 9 at stake in the action; (5) the possibility of a dispute concerning material facts; (6) whether the 10 default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of 11 Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th 12 Cir. 1986). All factual allegations in plaintiffs’ complaint, except for those relating to damages, 13 should be taken as true. Tele Video Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). 14 Where relief is granted, it should not “differ in kind from, or exceed in amount, what is demanded 15 in the pleadings.” Fed. R. Civ. P. 54(c). 16 IV. DISCUSSION 17 The second and third Eitel factors both examine the merits and sufficiency of a plaintiff’s 18 complaint, and accordingly, are “often analyzed together.” Vietnam Reform Party v. Viet Tan - 19 Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal. 2019) (quoting PepsiCo, Inc. v. Cal. 20 Sec. Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002)). These factors require courts to “consider 21 whether a plaintiff has ‘state[d] a claim on which [it] may recover.’” Id. While no single Eitel 22 factor is dispositive, these factors are commonly considered to be “the most important.” Id. 23 (quoting Sanrio, Inc. v. Jay Yoon, No. 10-CV-05930-EJD, 2012 WL 610451 at *4 (N.D. Cal. Feb. 24 24, 2012). Thus, the merits of Johnson’s claim are a natural place to begin the analysis. 25 To prevail on his ADA claim, Johnson must show that (1) “[he] is disabled within the 26 meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of 27 public accommodation; and (3) [] [he] was denied public accommodations by the defendant 1 because of [his] disability.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007). The 2 Complaint does not aver which version of the ADA standards apply, those from 1991 or 2010. 3 However, both versions require only that at least 5% of tables fixed to walls or floors be ADA- 4 compliant. See Whitaker v. Lonely Planet LLC, No. 21-03365-WHA, 2022 WL 3084316 at *2 5 (N.D. Cal. 2022) (discussing both versions of the standards, including the current standards 6 codified at 36 C.F.R. § 1191, App. C, F226.1). 7 Johnson’s Complaint is deficient in several respects. First, it is unclear whether the outdoor 8 tables were fixed. (A declaration from his investigator, Randall Marquis, includes an exhibit with 9 photos which appear to show they were not fixed. Dkt. No. 19-6.) Beyond that, the Complaint 10 does not include any facts about the tables available for dining indoors. Courts in this district have 11 held that alleging only that the outdoor dining tables were ADA-deficient is not enough to grant 12 default judgment. E.g., Johnson v. Tram Chim's Corp, No. 21-CV-01821-WHO, 2021 WL 13 6129054 at *1 (N.D. Cal. Nov. 8, 2021) (same Plaintiff). Even taking his Complaint as true, it is 14 unclear—at best—whether Johnson was denied any public accommodations in violation of the 15 ADA. Molski, 481 F.3d at 730. Because his Unruh claim is entirely derivative of his ADA claim, 16 all of Johnson’s Complaint is defective, strongly weighing against granting default judgment. 17 Several of the remaining Eitel factors counsel against granting default judgment here. 782 18 F.2d at 1471–72. There is a strong possibility of disputes concerning material facts. Also, the 19 policy of resolving disputes on the merits also weighs against granting judgment. The final Eitel 20 factors are essentially neutral. First, denying default judgment will prejudice Johnson, but almost 21 entirely in an abstract sense, as he does not plan to return until and unless necessary to verify ADA 22 compliance in connection with this lawsuit. See Complaint at ¶¶ 8, 20. Second, because the merits 23 cannot be determined, the reasonableness of the award in relation to the seriousness of the 24 defendant’s conduct cannot be determined either. See Brightpoint Distribution, LLC v. AliphCom, 25 No. 16-CV-03837-EDL, 2017 WL 7310780, at *4 (N.D. Cal. Dec. 4, 2017). Finally, there is no 26 information one way or another as to whether default was due to excusable neglect. 27 In a different procedural context, some courts have held that the broad prohibition against 1 discrimination in the ADA means that even establishments with no fixed tables should be required 2 || to provide ADA seating. Whitaker v. 2008 Shattuck Ave, LLC, No. 21-CV-03083-EMC, 2021 WL 3 3676967 at *1—2 (N.D. Cal. 2021) (order denying motion to dismiss, canvassing cases relying on 4 || the ADA’s mandate that “[n]o individual shall be discriminated against on the basis of disability in 5 the full and equal enjoyment of the [...] accommodations of any place of public accommodation.” 6 || 42 U.S.C. § 12182(a).). Here, however, given the clear language in the ADA standards that only 7 5% of fixed tables need to be ADA-compliant; the lack of evidence about the indoor dining 8 facilities; and the weight of the other Eitel factors against default judgment, that theory need not 9 || be addressed to hold that default judgment is inappropriate here. (Also, the dispersion 10 || requirement—that ADA-compliant seating be spread throughout the facility—may or may not 11 apply depending on how many tables there are, another fact unaverred in the Complaint. 36 C.F.R. 12 || § 1191, App. C, F226.2.) 13 V. CONCLUSION 14 Johnson’s motion for entry of default judgment is denied, without prejudice to a similar 3 15 motion being made on an amended Complaint, should leave to amend be granted. Plaintiff shall a 16 || have 21 days to file a motion for leave to file an amended Complaint.

18 || ITISSO ORDERED. 19 20 || Dated: August 12, 2022 21

RICHARD SEEBORG

22 Chief United States District Judge 23 24 25 26 27 28 ORDER DENYING MOTION FOR DEFAULT JUDGMENT CASE No. 21-cv-08475-RS