Opinion
1:21-cv-00967-AWI-SAB
02-12-2022
THERESA BROOKE, Plaintiff, v. SAI ASHISH INC., Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING DEFENDANT'S MOTION TO SET ASIDE ENTRY OF DEFAULT, DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AS MOOT, AND GRANTING DEFENDANT'S MOTION TO DISMISS
(Docs. 7, 16)
Plaintiff Theresa Brooke, who is represented by counsel, brings this civil action pursuant to the Americans with Disabilities Act (“ADA”) and California's Unruh Civil Rights Act (“Unruh Act”). This matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On July 27, 2021, at Plaintiff's request, default was entered against Defendant Sai Ashish, Inc. (Docs. 5, 6.) On August 5, 2021, Plaintiff filed a motion for default judgment. (Doc. 7.) On August 26, 2021, Defendant filed a motion to set aside the entry of default and/or dismiss the complaint. (Doc. 16.) On October 14, 2021, the assigned magistrate judge filed findings and recommendations, recommending that Defendant's motion to set aside the entry of default be granted, that Plaintiff's motion for default judgment be denied as moot, and that Defendant's motion to dismiss be granted with leave to amend. (Doc. 27.) The magistrate judge provided the 1 parties 14 days to file objections to the findings and recommendations. (Id. at 22-23.)
Plaintiff filed objections on October 28, 2021. (Doc. 28.) Plaintiffs objections do not dispute the magistrate judge's recommendation to set aside the entry of default or deny the motion for default judgment as moot. However, Plaintiff objects to the recommendation to grant Defendant's motion to dismiss.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the file, including Plaintiffs objections, the Court finds the findings and recommendations to be supported by the record and proper analysis.
Accordingly, the Court ORDERS:
1. The findings and recommendations issued on October 14, 2021 (Doc. 27) are ADOPTED as follows:
a. Defendant's motion to set aside entry of default (Doc. 16) is GRANTED;
b. Plaintiffs motion for default judgment (Doc. 7) is DENIED as moot; and c. Defendant's motion to dismiss (Doc. 16) is GRANTED with leave to amend.
2. Since the Court is granting Plaintiff leave to file an amended complaint, it does not reach the issue of supplemental jurisdiction with respect to Plaintiffs derivative Unruh Act claim.
Nevertheless, the Court notes Plaintiff's reliance on Acosta v. Parra Perez, No. 1:19-cv-01224-AWI-EPG, for her argument that this Court has previously retained supplemental jurisdiction over an Unruh Act claim is unavailing as Plaintiff's argument mischaracterizes the ruling in Acosta. Doc. 69 (Sept. 29, 2021), expressly referenced by Plaintiff, does not address the issue of retaining supplemental jurisdiction over the plaintiff's Unruh Act claim, nor did it need to, as default was entered against the defendants as to all of the plaintiff's claims and Doc. 69 is an order adopting findings and recommendations to grant the plaintiff's motion for default judgment.
3. Plaintiff may file an amended complaint within 21 days of the date of entry of this order.
IT IS SO ORDERED. 2