Brooks v. Morphe, LLC.
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 2/15/2021 DENYING, without prejudice, plaintiff's 13 Motion for Default Judgment. (Zignago, K.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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VALERIE BROOKS, individually and on
behalf of all others similarly situated,
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Plaintiff,
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No. 2:20-cv-1219 KJM DB
ORDER
v.
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MORPHE, LLC, a Delaware limited
liability company,
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Defendant.
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This matter came before the undersigned on February 12, 2021, pursuant to Local Rule
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302(c)(19), for hearing of plaintiff’s motion for default judgment. (ECF No. 19.) Attorney
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Robert Dart appeared via Zoom on behalf of the plaintiff. No appearance was made by, on behalf
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of, the defendant. At that time, oral argument was heard and the motion was taken under
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submission.
As noted at the February 12, 2021 hearing, plaintiff’s motion is defective in several
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respects, specifically as it pertains to the relief sought. In this regard, plaintiff’s complaint states
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it is a “CLASS ACTION COMPLAINT.” (Compl. (ECF No. 10 at 1.1) The motion for default
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Page number citations such as this are to the page number reflected on the court’s CM/ECF
system and not to the page numbers assigned by the parties.
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judgement states that “[p]laintiff starts her demand at $5,000,000 million” in damages based on
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the assumption “that only a California class gets certified[.]” (Pl. Mem. & Sup. (ECF No. 17) at
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9.)
At the February 12, 2021 hearing, however, plaintiff’s counsel acknowledged that no class
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had been certified in this action. “‘In cases in which the district courts have entered a default
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judgment against a defendant and no class has been certified, only named plaintiffs can recover
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damages.’” Cortes v. National Credit Adjusters, L.L.C., No. 2:16-cv-0823 MCE EFB, 2017 WL
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3284797, at *2 (E.D. Cal. Aug. 2, 2017) (quoting Whitaker v. Bennett Law, PLLC, No. 13-cv-
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3145 L(NLS), 2014 WL 5454398, at *3 (S.D. Cal. Oct. 27, 2014)); see also Partington v.
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American Intern. Specialty Lines Ins. Co., 443 F.3d 334, 341 (4th Cir. 2006) (“although a default
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judgment has the effect of deeming all factual allegations in the complaint admitted, it does not
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also have the effect of ‘admitting’ the independent legal question of class certification”); Davis v.
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Hutchins, 321 F.3d 641, 649 (7th Cir. 2003) (“Allowing certification by default or because the
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defendant has admitted that the class exists, with no independent analysis or determination by the
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district judge, would remove this important protection.”).2
As to plaintiff Valerie Brooks, California’s Unruh Act provides that a plaintiff subjected
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to discrimination is entitled to recover $4,000 for each occasion on which the plaintiff was denied
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equal access. Cal. Civ. Code § 52(a). “A plaintiff is denied full and equal access only if the
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plaintiff personally encountered the violation on a particular occasion, or the plaintiff was
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deterred from accessing a place of public accommodation on a particular occasion.” Cal. Civ.
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Code § 55.56(b).
Here, the complaint refers vaguely to “Plaintiff’s numerous visits to Defendant’s website,”
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including an attempt “[r]ecently in 2020[.]” (Compl. (ECF No. 1) at 8, 9.) And plaintiff’s
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memorandum in support of default judgment also asserts that “Plaintiff has visited Defendant’s
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website numerous times, including in 2020.” (Pl.’s Mem. & Supp. (ECF No. 17) at 3.) But
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Pursuant to the Local Rules a motion for class certification would need to be noticed for hearing
before the assigned District Judge.
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neither document provides a specific number of visits or the dates of those visits. And plaintiff
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did not file a declaration in support of the motion for default judgment.
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At the February 12, 2021 hearing plaintiff’s counsel also stated that plaintiff was
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requesting injunctive relief. Plaintiff’s memorandum in support, however, does not mention
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injunctive relief. Thus, it is not clear what specific injunctive relief plaintiff seeks.
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Plaintiff is also advised that for an ADA plaintiff to establish Article III standing to pursue
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injunctive relief, plaintiff must demonstrate the threat of a future repeated injury is real and
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immediate. Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011). To
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demonstrate sufficient likelihood of future harm, a plaintiff can establish that plaintiff intends to
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return to a noncompliant place of public accommodation where plaintiff is “likely to reencounter
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a discriminatory architectural barrier.” Id. at 950. Alternatively, a plaintiff can show that the
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“discriminatory architectural barriers deter him from returning to a noncompliant
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accommodation,” but that plaintiff would return if the barriers were removed. Id. It is not
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apparent that any of plaintiff’s briefing satisfies the standing requirement.
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CONCLUSION
For the reasons set forth above, IT IS ORDERED that plaintiff’s October 16, 2020 motion
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for default judgment (ECF No. 13) is denied without prejudice to renewal of a motion that cures
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the defects noted above.
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Dated: February 15, 2021
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DLB:6
DB\orders\orders.civil\brooks1219.mdj.den.ord
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