Johnson v. Tirone & Tuan Investments, Inc.
- Susan Van Keulen
- 5:21-cv-08370
- U.S. District Court · Northern District of California
- 5
In Johnson v. Tirone & Tuan Investments, Judge Van Keulen denied default judgment and set aside default because service was inadequate.
Scott Johnson must properly serve Tirone & Tuan Investments, Inc. by December 5, 2022. The company’s default was set aside, and its time to respond will begin when service is completed.
What happened
Johnson v. Tirone & Tuan Investments, Inc. concerns Scott Johnson’s claims that the company violated the Americans with Disabilities Act and California’s Unruh Civil Rights Act by failing to provide wheelchair-accessible outdoor dining surfaces at Big T’s Seafood Market Bar. The company did not respond, and the clerk entered its default.
The court found that Johnson had not shown that the company was properly served. The papers were left with an unidentified “John Doe” at an address where several businesses operated, without identifying a suite number or the business involved. Johnson also mailed later filings to the general address without a suite number or business name.
Judge Susan Van Keulen denied Johnson’s motion for default judgment and set aside the clerk’s default. The court did not consider the other default-judgment factors and ordered Johnson to properly serve the company with the summons, complaint, and order by December 5, 2022; the company’s response period would begin upon service.
The detailed version
- Johnson v. Tirone & Tuan Investments, Inc. · No. 5:21-cv-08370
- Susan Van Keulen
- Nov. 23, 2022
Background
Scott Johnson sued Tirone & Tuan Investments, Inc. under the Americans with Disabilities Act and California’s Unruh Civil Rights Act. He alleged that the company, which he contended owned Big T’s Seafood Market Bar, failed to provide wheelchair-accessible outside dining surfaces. The company did not appear or respond to the complaint, and the Clerk of Court entered default on March 15, 2022.
Johnson moved for default judgment, which is a judgment entered against a party that has not responded. The company did not oppose the motion.
Service of Process
Before entering default judgment, the court had to determine whether the company was properly served with the summons and complaint. Federal Rule of Civil Procedure 4 permits service on a corporation through certain officers or agents, or under applicable state law. Johnson relied on California’s substitute-service procedure.
Johnson’s proof of service stated that Tirone Hyunh was the company’s agent for service of process, but that the papers were left with an unidentified “John Doe,” described as a person apparently in charge, at 1694 Tully Road in San Jose. The proof did not identify a suite number or the business where the papers were left. Records submitted by Johnson identified the company or Big T’s Seafood Market Bar as being in “Suite B” at that address, and the court noted that the address appeared to be a shopping center with several businesses. Johnson also mailed the request for default and motion for default judgment to the general street address without identifying a suite number or the business name.
The court concluded that Johnson had not demonstrated that service on the company was adequate. Because of that conclusion, the court found it unnecessary to consider the other factors used to evaluate a default-judgment request, including the merits of the claims, the sufficiency of the complaint, and the amount at stake.
Disposition
The court DENIED Johnson’s motion for default judgment and SET ASIDE the default entered by the Clerk of Court. It ordered Johnson to properly serve the company with the summons, complaint, and a copy of the order, and to file a complete proof of service by December 5, 2022. The company’s time to respond to the complaint would run from the time of service. Judge Susan Van Keulen signed the order.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.