Piccarreta v. Harmony Hospice of Scottsdale LLC et al

Filing 65

ORDER AND DEFAULT JUDGMENT - Plaintiff's motion for default judgment (Doc. 64 ) is granted. Default judgment is entered in favor of Plaintiff and against Defendants Harmony Hospice of Scottsdale, LLC and Hospice of Scottsdale, LLC in the amount of $263,660. Plaintiff's request for attorney's fees is granted in the amount of $50,394.10. Defendants' motion in limine (Doc. 52 ) is found to be moot. Signed by Judge David G Campbell on 5/6/2014. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patricia A. Piccarreta,
Plaintiff,

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v.

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No. CV-12-00533-PHX-DGC
ORDER AND DEFAULT
JUDGMENT

Harmony Hospice of Scottsdale LLC, et al.,

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Defendants.

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Plaintiff has moved for a default judgment pursuant to Rule 55(b) and the Court’s

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March 4, 2014 order directing her to do so. Doc. 64. Defendant has not responded. The

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Court will grant the motion.

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I.

Background.

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Plaintiff filed this action under the Americans with Disabilities Act, 42 U.S.C.

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§ 12101 et seq., against her former employer, Harmony Hospice of Scottsdale, LLC and

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the Hospice of Scottsdale, LLC, alleging failure to provide reasonable accommodation

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for her disability and retaliation in employment. Doc. 1. Both Defendants thereafter

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filed Articles of Termination with the Arizona Corporation Commission, and Defendants’

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counsel was permitted to withdraw after the Court made clear that his withdrawal would

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result in a default judgment. Docs. 63.

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II.

The Motion for Default Judgment.

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The Court has discretion to grant a default judgment. See Fed. R. Civ. P. 55(b)(2);

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Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Factors the Court may consider

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include (1) the possibility of prejudice to the plaintiff, (2) the merits of the claim, (3) the

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sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a

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dispute concerning material facts, (6) whether default was due to excusable neglect, and

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(7) the policy favoring a decision on the merits. See Eitel v.McCool, 782 F.2d 1470,

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1471-72 (9th Cir. 1986). In applying the Eitel factors, “the factual allegations of the

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complaint, except those relating to the amount of damages, will be taken as true.”

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Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977).

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A.

Possible Prejudice to Plaintiff.

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The first Eitel factor weighs in favor of granting Plaintiff’s motion. Defendants’

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counsel has withdrawn and Defendants as entities are in the process of termination. If

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Plaintiff’s motion for default judgment is not granted, Plaintiff “will likely be without

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other recourse for recovery.” PepsiCo, Inc. v. Cal. Security Cans, 238 F. Supp. 2d 1172,

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1177 (C.D. Cal. 2002).

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B.

The Merits of Plaintiff’s Claims and the Sufficiency of the Complaint.

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The second and third Eitel factors favor a default judgment where the complaint

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sufficiently states a claim for relief. See Cal. Security Cans, 238 F. Supp. 2d at 1175;

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Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978)). A review of Plaintiff’s

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complaint and the exhibits attached thereto shows that Plaintiff has stated valid causes of

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action against Defendants. See Doc. 1.

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C.

The Amount of Money at Stake.

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Under the fourth Eitel factor, the court considers the amount of money at stake in

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relation to the seriousness of the defendants’ conduct. See Cal. Security Cans, 238 F.

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Supp. 2d at 1176-77. Plaintiff seeks compensatory damages of $50,000, the statutory

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limit for an employer of Defendants’ size, and injunctive relief in the form of back pay

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totaling $213,660 for violations of 42 U.S.C. § 12112 (b)(5)(A) and 42 U.S.C. 12203(a).

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Plaintiff has submitted an affidavit in support of her request for back pay, detailing her

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wags and hours missed. Defendants do not dispute this evidence.

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D.

Possible Dispute Concerning Material Facts.

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Upon entry of default, “the factual allegations of the complaint, except those

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relating to the amount of damages, will be taken as true.” TeleVideo Sys., Inc. v.

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Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Given the sufficiency of the complaint

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and Defendant’s default, “no genuine dispute of material facts would preclude granting

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[Plaintiff’s] motion.” Cal. Security Cans, 238 F. Supp. 2d at 1177.

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E.

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There is no evidence of excusable neglect by Defendants, whose counsel withdrew

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Whether Default Was Due to Excusable Neglect.

from the case. Defendants have offered no argument that default is excusable.

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F.

The Policy Favoring a Decision on the Merits.

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“Cases should be decided upon their merits whenever reasonably possible,” Eitel,

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782 F.2d at 1472, but the mere existence of Rule 55(b) “indicates that this preference,

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standing alone, is not dispositive,” Cal. Security Cans, 238 F. Supp. at 1177 (citation

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omitted). The withdrawal of defense counsel in this case “makes a decision on the merits

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impractical, if not impossible.” Id. The Court therefore is not precluded from entering

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default judgment against Defendants. See id.; Gemmel, 2008 WL 65604 at *5.

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G.

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Having reviewed Plaintiff’s motion and supporting documents, and having

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considered the Eitel factors as a whole, the Court concludes that entry of default

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judgment is appropriate. The Court will grant default judgment against Defendants in the

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amount of $263,660 for violations of Title 42 U.S.C. §§ 12112(b)(5)(A) and 12203(a).

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III.

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Conclusion.

Attorney’s Fees.
Plaintiff has also requested an award of attorneys’ fees and costs under 42 U.S.C.

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§ 12205 in the amount of $50,394.10.

Doc. 64 at 6-7.

Plaintiff’s attorneys have

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submitted an affidavit in support and a billing detail for 193.50 hours worked over the

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course of two years. Defendants have not disputed these amounts. The Court finds the

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amount requested to be reasonable and will grant Plaintiff’s request for attorney’s fees.

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IT IS ORDERED:

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1.

Plaintiff’s motion for default judgment (Doc. 64) is granted.

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2.

Default judgment is entered in favor of Plaintiff and against Defendants

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Harmony Hospice of Scottsdale, LLC and Hospice of Scottsdale, LLC in

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the amount of $263,660.

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3.

Plaintiff’s request for attorney’s fees is granted in the amount of
$50,394.10.

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4.

Defendants’ motion in limine (Doc. 52) is found to be moot.

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Dated this 6th day of May, 2014.

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