Skyfire v. ServiceSource, Inc.

Filing 136

ORDER. ORDERED that Defendant ServiceSource Inc.'s Partial Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) 55 is DENIED. ORDERED that Plaintiff's Motion for Entry of Default Judgment [6 7], is DENIED WITHOUT PREJUDICE. Plaintiff is granted leave to re-file this motion at the conclusion of the litigation against the non-defaulted defendant, SSI. ORDERED that Defendant ServiceSource Inc.s Motion to Set Aside Default Judgment 106 , is DENIED by Chief Judge Wiley Y. Daniel on 09/20/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.

10-cv-03155-WYD-BNB

GONJI SKYFIRE
Plaintiff,
v.
SERVICESOURCE, INC., and
SERVICESOURCE NETWORK,
Defendants.
ORDER

I.

INTRODUCTION
This matter is before the court on three separate motions: 1) Defendant

ServiceSource Inc.’s Partial Motion to Dismiss Plaintiff’s Second Amended Complaint
Pursuant to Fed. R. Civ. P. 12(b)(1) [ECF No. 55], filed October 4, 2011; 2) Plaintiff’s
Motion for Entry of Default Judgment [ECF No. 67], filed November 8, 2011; and 3)
Defendant ServiceSource Inc.’s Motion to Set Aside Default Judgment [No. 106], filed
January 25, 2012.
By way of background, the Plaintiff in this case, Mr. Gonji Skyfire, is a
hearing-impaired individual who communicates via sign language. Plaintiff’s Second
Amended Complaint at ¶¶ 12-14, [hereafter, “Amended Complaint”], [ECF No. 51], filed
August 10, 2011. As a program participant in the Department of Vocational
Rehabilitation of the Colorado Department of Human Services, Plaintiff began working for
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Defendant, ServiceSource Inc. (SSI) in Denver, Colorado, on SSI’s government contract
with the United States Air Force. Id. at ¶¶ 18-23. Mr. Skyfire alleges he experienced
repeated demotions, non-selection, denials of training, refusal of a requested reduction in
work hours, and that he ultimately lost his job because of his employer’s discrimination
against him because of his disability. Prior to his alleged termination, he filed a claim
against SSI with the EEOC. Id. at ¶¶ 62.
A month after filing his claim with the EEOC, SSI called him to a meeting about the
concerns he had reported to the EEOC. Id. at ¶ 64. An interpreter was provided at this
meeting. Id. At a subsequent meeting to address Mr. Skyfire’s tardiness and
absences, Mr. Skyfire claims he was forced to either resign his position or sign a
document which would dismiss his EEOC charge. Id. at ¶7 0-73. No interpreter was
provided at the second meeting and Mr. Skyfire chose to resign. Id. at ¶ 70, 77. On
March 3, 2010, Mr. Skyfire reported his termination to the EEOC, believing his termination
was retaliatory and due to his disabilities. Id. at ¶ 79. On March 25, 2010 a formal
charge of discrimination was filed with the EEOC detailing these allegations. See Partial
Motion to Dismiss, Exhibit C, [ECF No. 55], filed October 4, 2011.
Mr. Skyfire filed this case against SSI on December 18, 2010, alleging three
separate violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et
seq. See Complaint, [ECF No. 1]. He amended his complaint on February 4, 2011 to
add claims pursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §
701, et seq. Amended Complaint, [ECF No. 4]. After a hearing on August 10, 2011, Mr.
Skyfire was granted leave to file a second amended complaint. See Minute Entry [ECF
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No. 48]. The Second Amended Complaint, [ECF No. 51], which is now the operative
complaint, was filed on August 10, 2011 and added claims against ServiceSource
Network.
In his Amended Complaint, Plaintiff asserts claims against both SSI, and
ServiceSource Network, and alleges failure to accommodate a known disability (Claim 1),
disparate treatment (Claim 2), harassment/hostile work environment (Claim 3), and
retaliation (Claim 4) in violation of both the Rehabilitation Act and the ADA. Plaintiff also
alleges constructive discharge (Claim 5).
II.

Procedural History
With respect to the three motions that are currently pending before me, the

procedural history is as follows. SSI filed its Partial Motion to Dismiss, [ECF No. 55], on
October 4, 2011, wherein it asks the Court to dismiss the case pursuant to Fed. R. Civ. P.
12(b)(1) for lack of jurisdiction, raising among other things a failure to exhaust and the
argument that ServiceSource Network it is not a separate entity from SSI and therefore
lacks the capacity to be sued . Mr. Skyfire filed his Response to the Partial Motion to
Dismiss, [ECF No. 65], on November 7, 2011, and SSI filed a Reply, [ECF No. 74], on
November 23, 2011.
During this same time period, on November 7, 2012, Mr. Skyfire filed a Motion for
Entry of Default as to Defendant ServiceSource Network, [ECF No. 63], and the clerk
entered default as to ServiceSource Network, [ECF No. 66], on November 8, 2011.
Plaintiff then immediately filed a Motion for Default Judgment as to ServiceSource
Network, [ECF No. 67], which is now before me. Although the motion for default
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judgment pertains to ServiceSource Network, SSI filed a Response to the motion, [ECF
No. 83], on December 2, 2011, again arguing that ServiceSource Network does not a
have the capacity to be sued as a separate legal entity. Mr. Skyfire filed his Reply to the
Motion for Default Judgment, [ECF No. 96], on December 19, 2011.
I originally set a hearing on the Motion for Default Judgment for January 25, 2012.
However, by Minute Order dated January 23, 2012, [ECF No. 103], I converted this to a
motions hearing to hear argument on both the Motion for Default Judgment and SSI’s
Partial Motion to Dismiss, particularly with respect to the capacity issue. On the morning
of January 25, 2012, just before the start of the hearing, SSI filed a Motion to Set Aside
Default Judgment, [ECF No. 106], repeating many of the same arguments that
ServiceSource Network cannot be sued in its individual capacity.
At the hearing, I heard argument from both parties regarding the capacity of
ServiceSource Network in addition to argument on other jurisdictional issues related to
exhaustion which were raised by SSI in the Partial Motion to Dismiss. I then ordered
Plaintiff to file a response to SSI’s Motion to Set Aside Default Judgment, which he did on
February 3, 2012. See Plaintiff’s Response to the Motion to Set Aside Default
Judgment, [ECF No. 108], filed February 3, 2012. SSI filed its Reply, [No. 114], on
February 24, 2012. Consistent with my request at the hearing, SSI provided me with a
copy of the full deposition transcript of Bertha R. Parby, Senior Vice President of Human
Capital and Employee Relations for SSI, whose testimony was relied upon by both parties
at the January 25, 2012 hearing. I have reviewed the entire transcript in conjunction with
my consideration of these motions. I will address each of the three pending motions in
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turn; however, my analysis will begin with the issue of whether ServiceSource Network is
a proper defendant with the capacity to be sued since this issue is raised in all three
motions. Additionally, I must also address the threshold issue of whether SSI has
standing to argue on behalf of ServiceSource Network.
III.

Motion To Dismiss
a. Capacity of ServiceSource Network to be Sued
In its Partial Motion to Dismiss, SSI argues that jurisdiction over ServiceSource

Network is not proper under F.R.C.P. 17(b)(3) because it is not a separate entity from SSI
and therefore lacks the capacity to be sued. Specifically, SSI claims that “ServiceSource
Network” is merely a term used by SSI for administrative convenience to refer to various
operations and contract sites throughout the U.S. See SSI’s Partial Motion to Dismiss at
8 [ECF No. 55]. SSI asserts that ServiceSource Network’s legal identity is coextensive
with SSI’s, making it incapable of being sued. SSI makes these same arguments on
behalf of ServiceSource Network in both its Response to the Motion for Entry of Default
Judgment, [ECF No. 67], and in its Motion to Set Aside Entry of Default Judgment, [ECF
No.106].
In response, Mr. Skyfire argues first that SSI does not have standing to make this
argument for ServiceSource Network. He also notes that ServiceSource Network was
properly served by delivering a copy of the Summons and Second Amended complaint to
Marilynn Bersoff, a ServiceSource Network Board member, on September 13, 2011.
See Summons Returned Executed, [ECF No. 54], filed September 20, 2011. Mr. Skyfire
also argues that ServiceSource Network does have the capacity to be sued under Fed. R.
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Civ. P. 17(b)(3)(A) because Colorado permits suit against an unincorporated association
in its common name and because he is seeking to enforce a federal substantive right
See Plaintiff’s Reponse at 12 [ECF No. 80] (citing Colo. Rev. Stat. § 13-50-105).
These issues were first raised in the context of SSI’s Partial Motion to Dismiss
pursuant to Rule 12(b)(1), which empowers a court to dismiss a complaint for “lack of
subject matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Rule 12(b)(1) motions are
generally presented in one of two forms: “the moving party may (1) facially attack the
complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond
allegations contained in the complaint by presenting evidence to challenge the factual
basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v.
Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004). Where a party moves to dismiss under
12(b)(1) by attacking the factual basis of the complaint, a court may consider matters
outside the pleadings, without necessitating conversion into a motion for summary
judgment.1 Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir. 1992). Where the
motion constitutes a facial attack on the allegations of subject matter contained in the
complaint, I must presume all of the allegations contained in the amended complaint to be
true. Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002). Ultimately, “[t]he
burden of establishing subject matter jurisdiction is on the party asserting jurisdiction.”
Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008) (citations
omitted).

1

Many of the affidavits and other documents submitted to the Court on the issue of capacity have
been attached by both parties as exhibits in the pleadings on the Partial Motion to Dismiss as well as the
pleadings relevant to the Motion to Set Aside Default Judgment. Since I am permitted to consider matters
outside the complaint, I will rely on these exhibits as well.

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Under Fed. R. Civ. P. 17(b)(3), capacity of an association to sue or be sued is
determined by the law of the state in which the federal district court is located, except that
“a partnership or other unincorporated association with no such capacity under that
state’s law may sue or be sued in its common name to enforce a substantive right existing
under the United States Constitution or law.” In Colorado, an unincorporated
association has the capacity to sue or be sued under its common name. See Colo. Rev.
Stat. § 13-50-105 (2011). Regardless, because Plaintiff seeks to enforce a substantive
right under the ADA and the Rehabilitation act, he is permitted to sue an unincorporated
association under federal law.
Federal courts have used various definitions for an unincorporated association
including, “a body of persons acting together and using certain methods for prosecuting a
special purpose or common enterprise” and “a collection of persons ‘created and formed
by the voluntary action of a number of individuals in associating themselves together
under a common name for the accomplishment of some lawful purpose.’” Law v.
National Collegiate Athletic Ass’n, 167 F.R.D. 464, 474 (D. Kan. 1996), vacated on other
grounds sub nom, University of Texas v. Vratil, 96 F.3d 1337 (10th Cir. 1996); see also
Johnson v. Chilcott, 599 F.Supp.224, 228 (D.Colo. 1984) (explaining characteristics of an
unincorporated association generally include by-laws governing its organization, a stated
purpose for existence, and a membership which provides for its continuity).
Although SSI insists that ServiceSource Network is merely a moniker used for
branding purposes, Mr. Skyfire has presented evidence that includes the mission
statement of ServiceSource Network from its 2010 Annual Report, in which
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ServiceSource Network declares its mission is “to provide individuals with disabilities an
exceptional service delivery experience through innovative and valued employment,
training, rehabilitation and support services.” Plaintiff’s Response to the Partial Motion to
Dismiss, Exhibit 4 at 3, [ECF No. 78]. Additionally, its membership consists of five
affiliate organization, one of which is SSI. Id. at 5.
The evidence also shows that ServiceSource Network had its own governing
structure, including a Senior Executive Team and Board of Directors. Id. at 4-5; see also
Plaintiff’s Response to the Motion to Set Aside Default, Exhibit 1 at 3-8 and Exhibit 3 at
1-8 [ECF No. 108]. The 2010 Annual Report and website also identified ServiceSource
Network’s headquarters in Alexandria, VA, which is distinct from the primary addresses of
any of its affiliate companies. Plaintiff’s Response to the Partial Motion to Dismiss,
Exhibit 4 at 41, [ECF No. 78]; Plaintiff’s Response to the Motion to Set Aside Default,
Exhibit 1 at 9, [ECF No. 108]. Additional evidence indicates that ServiceSource Network
had its own website, letterhead, it distributed an employee handbook to the affiliate
companies, it published an annual report, it adopted an EEO policy statement, and it
managed personnel and IT services for its affilitated corporations, including SSI. See
Plaintiff’s Response to Motion to Set Aside Default Judgment, Exhibits 1-10, [ECF No.
108].
The only evidence that SSI has submitted to refute Plaintiff’s assertion is the
testimony and affidavit of Ms. Parby, SSI’s Senior VP of Human Resources, wherein she
states “ServiceSource Network” was merely a term used for branding and marketing
purposes, that it “does not independently own any assets, does not employ any workers,
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and does not have a board of directors.” SSI Partial Motion to Dismiss, Exhibit 2 at 1,
[ECF No. 55]. Further, SSI asserts an unincorporated division of a corporation lacks
legal capacity to be sued. Id. at 8 (citing U.S. v. ITT Blackburn Co. Div. of ITT, 824 F.2d
628 (8th Cir. 1987). While this proposition is true, SSI’s reliance on this rule is
misplaced. In ITT Blackburn, an unincorporated division of a parent company was held
to lack capacity to be sued. 824 F.2d at 629. Here, ServiceSource Network itself
appears to be the parent organization, while SSI is presented as an affiliate. Therefore,
ServiceSource Network is not an unincorporated division of SSI, but rather an
unincorporated association.
Accordingly, based on my review of all the evidence submitted by the parties,
Plaintiff has effectively demonstrated that ServiceSource Network is an unincorporated
association within the meaning of the federal definition. Thus it is a properly named
defendant in this matter. To the extent SSI bases its Partial Motion to Dismiss on the
capacity of ServiceSource Network to be sued, the motion is denied.
b. Standing
Although I have determined that ServiceSource Network has the capacity to be
sued as an unincorporated association pursuant to Fed. R. Civ. P. 17(b)(3), it has not
made an appearance in this litigation. Rather, SSI has asserted various arguments on
ServiceSource Network’s behalf. In other cases where a defendant has urged dismissal
of claims based on its incapacity to be sued, that motion was brought by the defendant
itself. See e.g. Testa v. Janssen, 482 F.Supp.1195, 1200 (W.D. Penn. 1980) (motion to
dismiss for want of capacity filed by the particular defendant contesting its own capacity);
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see also Fuller v. Woodland Racing, 1994 WL 171408 (D. Kan. April 7, 1004) (defendants
Woodland Racing and Woodlan Kennel Club filed a motion to dismiss on their own behalf
arguing lack of capacity to be sued); Bowles v. City of Mansfield, 2009 WL 6903813 at *9
(N.D. Ohio, July 10, 2009) (same). Accordingly, ServiceSource Network must argue on
its own behalf. SSI has not demonstrated the existence of a relationship between itself
and ServiceSource Network such that SSI has standing to argue on behalf of
ServiceSource Network.
c. Exhaustion
With respect to exhaustion, I first note that based on my analysis above, SSI lacks
standing to argue that all of Mr. Skyfire’s claims against ServiceSource Network should
be dismissed for lack of administrative exhaustion because only SSI, and not
ServiceSource Network, was named in Mr. Skyfire’s EEOC complaint. Therefore, I need
not address the merits of whether the scope of the EEOC complaint also encompassed
claims against ServiceSource Network based on Plaintiff’s “identity of interest” argument.
Turning to the argument SSI asserts on its own behalf, SSI argues that Mr. Skyfire
is administratively barred from asserting his “regarded-as” disability discrimination and
constructive discharge claims because he only alleged that SSI discriminated against him
on the basis of an actual disability, and that it actually terminated him. Further, SSI
asserts that Mr. Skyfire failed to set forth any factual allegations in his charge that would
provide the agency with sufficient information to evaluate these claims.
In response, Mr. Skyfire argues that the scope of his EEOC claim was broad
enough to include the “regarded-as” discrimination claim and the constructive discharge
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claim because the facts alleged in the EEOC charge were sufficient to put the agency on
notice. See Jones v. UPS, 502 F.3d 1176 (10th Cir. 2007). Mr. Skyfire also notes that
his claims are premised on the Rehabilitation Act in addition to the Americans with
Disabilities Act as amended, and exhaustion is not required under the Rehabilitation Act.
Specifically, Mr. Skyfire argues that Section 504 of the Rehabilitation Act controls,
because he is suing SSI as a federal funds recipient—not a federal employer—and this
remedial scheme does not require exhaustion.
i.

ADA Claims

Exhaustion of administrative remedies under the ADA is a jurisdictional
prerequisite to suit. McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1105 (10th Cir.
2002); 42 U.S.C. § 12117(a). This requirement serves the purpose of giving the agency
the information it needs to investigate and resolve the dispute between the employee and
the employer. Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993). As a general rule, a
Title VII plaintiff cannot bring claims in a lawsuit which were not included in the underlying
EEOC charge. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974). Rather,
“each discrete incident of [discrimination or retaliatory action] constitutes its own “unlawful
employment practice” for which administrative remedies must be exhausted.” Martinez
v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003).
To determine whether Mr. Skyfire has exhausted administrative remedies for the
“regarded-as” disability claim and constructive discharge claim, I must determine the
scope of allegations contained in the EEOC charge. Jones v. United Parcel Serv., Inc.,
502 F.3d 1176, 1186 (10th Cir. 1997). That is because “[a] plaintiff's claim in federal
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court is generally limited by the scope of the administrative investigation that can
reasonably be expected to follow the charge of discrimination submitted to the EEOC.”
Id.; see also Jones v. Sumser Ret. Vill., 209 F.3d 851, 853 (6th Cir.2000) (“[T]he facts
alleged in the charge must be sufficiently related to the claim such that those facts would
prompt an investigation of the claim.”). The court is to “liberally construe charges filed
with the EEOC in determining whether administrative remedies have been exhausted as
to a particular claim.” Jones, 502 F.3d at 1186.
Furthermore, the EEOC regulations do not require that Mr. Skyfire delineate his
legal theories in the charge. Rather, “a charge is sufficient when the Commission
receives from the person making the charge a written statement sufficiently precise to
identify the parties, and to describe generally the action or practices complained of.” 29
C.F.R. § 1601.12(b) (incorporating § 1601.12(a)(3) which requires “a clear and concise
statement of the facts, including pertinent dates, constituting the alleged unlawful
employment practices.”).
In the case at hand, it is undisputed that Mr. Skyfire checked the “retaliation” and
“disability” boxes and also provided detail about the nature of the discrimination and his
termination. Ex. 3 to Mot. to Dismiss at 1. He describes his demotions, instances of
non-selection, reduction of hours and denial of training. Id. Mr. Skyfire also explains he
had “doctors notes regarding [his] medical conditions” implying that SSI was aware of his
medical issues. Finally, he explains that “on February 23, 2010, I was terminated after
refusing to sign a document that would nullify my EEOC discrimination complaint.”
I find that the foregoing should have triggered an inquiry into whether SSI viewed him as
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disabled. See Jones, 502 F.3d at 1186-87. In other words, an investigation into
whether SSI took action against Mr. Skyfire because it regarded him as disabled “‘can
reasonably be expected to follow the charge.’” Id. at 1187 (quotation omitted). Mr.
Skyfire’s claim of “regarded-as disabled” discrimination is therefore within the scope of
the charge and I deny Defendant’s motion to dismiss as to this issue.
The constructive discharge claim is a closer issue. Although Mr. Skyfire did not
use the word “constructive” to describe his termination, his words can be construed to
reveal that he understood that he either had to sign the document nullifying is EEOC
complaint or he would be terminated. Accordingly, an investigation of the circumstances
of his termination, constructive or otherwise, could “reasonably be expected to follow the
charge.” Jones, 502 F.3d at 1187 (quotation omitted). Given that I must “liberally
construe” EEOC charges, Mr. Skyfire’s constructive discharge claim is also within the
scope of the charge and Defendant’s motion is denied as to this issue.
i. Rehabilitation Act Claims
Under the Rehabilitation Act, federal employees may assert claims against
federal employers pursuant to Section 501. See 29 U.S.C. § 791. The remedial
scheme for those claims is set for in Section 505(a)(1), which incorporates the remedies,
procedures and rights set forth in Title VII. 29 U.S.C. § 794a(a)(1). Thus, employees
asserting claims against federal employers pursuant to Section 501 must meet the
exhaustion requirement. Id.; see also Ryan v. Shawnee Mission Unified School District
No. 512, 437 F.Supp.2d 1233, 1253 (explaining statutory scheme). However, a suit
under Section 504 of the Rehabilitation act, against an employer who receives federal
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funds rather than a federal employer, does not require exhaustion. Ryan, 437
F.Supp.2d at 1254. Section 504 of the Rehabilitation Act bars disability discrimination in
a federally funded program, but it incorporates the rights, remedies, and procedures, set
forth in Title VI, which does not require exhaustion.

See 29 U.S.C § 794(a) and

794a(a)(2). Accordingly, exhaustion is not required for suites under § 504 of the
Rehabilitation Act against a federal funds recipient. Ryan, 437 F.Supp.2d at 1254; see
also Pushkin v. Regents of Univ. of Colo. 658 F.2d 1372, 1380-82 (10th Cir. 1981)
(same).
SSI describes itself as a not-for-profit program that contracted with the federal
government to provide services to the U.S. Air Force. Partial Mot. to Dismiss at 2, [ECF
No. 55]. Plaintiff has included entries from USASpending.gov to show SSI has been the
recipient of federal funds.2 See Exhibit 1 of Plaintiff’s Amended Response [ECF No.
78-2]. Therefore, Plaintiff is permitted to proceed with its claims against SSI under
Section 504 of the Rehabilitation Act without exhausting administrative remedies.
IV.

Motions Pertaining to Default Judgment
Entry of default judgment is committed to the sound discretion of the district court.

Creative Tile Marketing, Inc. v. SCIS Intern., S.r.L., 922 F. Supp. 1534 (S.D. Fla. 1996).
In determining whether to award a default judgment, the Court may consider (1) the
prejudice to the plaintiff if the default is not granted; (2) the merits of plaintiff’s claims; (3)
the sum of money at stake; (4) any possible dispute over material facts; (5) whether the
defendant’s delay was the result of excusable neglect; and (6) the strong policy of
2

Although I will not address the merits of SSI arguments asserted on behalf of ServiceSource
Network, I would note that Plaintiff has failed to provide any evidence that ServiceSource Network was also
a recipient of federal funds.

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favoring decisions on the merits. American Cyanamid Co. v. America Baolishi, Inc.,
2000 WL 1006556 (N. D. Cal. 2000).
To set aside an entry of default, good cause must be shown pursuant to Fed. R.
Civ. P. 55(c). The good cause required to set aside an entry of default, before a default
judgment has issued, poses a lesser standard for the defaulting party than the excusable
neglect requirement which must be shown for relief from judgment under Rule 60(b).
Dennis Garberg & Associates, Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 775 n. 6 (10th
Cir. 1997).
Although ServiceSource Network has not made an appearance nor participated in
this litigation, I will not enter default judgment at this time. While Plaintiff’s have
requested a hearing on damages, such a hearing would be more appropriate at the
conclusion of the litigation against the non-defaulted defendant SSI. At this time, the
damages are not a sum certain and it is possible that some material facts may be in
dispute. Delaying the entry of default judgment will not prejudice the plaintiff at this time.
Moreover, it will allow me to consider the merits of Plaintiff’s claims as it proceeds against
SSI. Therefore, Plaintiff’s Motion for Entry of Default Judgment is denied without
prejudice. Additionally, for the reasons stated above, SSI does not have standing to file
a motion to set aside the entry of default as to ServiceSource Network, therefore, its
motion is also denied.
V.

CONCLUSION
Based on my analysis above, ServiceSource Network will remain a party in this

litigation as it has the capacity to be sued under federal law as an unincorporated
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association. I also find that SSI lacks standing to file any motions on behalf of
ServiceSource Network. Furthermore, the scope of Mr. Skyfire’s EEOC charge
encompasses his “regarded-as” disability discrimination claim and his construction
discharge claim and he is not required to exhaust his administrative remedies for his
Section 504 Rehabilitation Act claims. Accordingly, it is
ORDERED that Defendant ServiceSource Inc.’s Partial Motion to Dismiss
Plaintiff’s Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) [ECF No. 55],
filed October 4, 2011 is DENIED. It is
FURTHER ORDERED that Plaintiff’s Motion for Entry of Default Judgment [ECF
No. 67], filed November 8, 2011 is DENIED WITHOUT PREJUDICE. Plaintiff is granted
leave to re-file this motion at the conclusion of the litigation against the non-defaulted
defendant, SSI. It is
FURTHER ORDERED that Defendant ServiceSource Inc.’s Motion to Set Aside
Default Judgment [No. 106], filed January 25, 2012, is DENIED.
Dated: September 20, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
U. S. District Chief Judge

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