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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MARSHALL LOSKOT, an individual,

and DISABILITY RIGHTS ENFORCEMENT,

EDUCATION, SERVICES: HELPING YOU

HELP OTHERS, a California public

benefit corporation,

Plaintiffs,

v.

UNITED PETROLEUM TRUCK STOP;

RAKESH SEHGAL, an individual; and

SEHGAL, INC., a California

corporation,

Defendants.

CIV. S-04-1992 GEB PAN 

ORDER

 and 

FINDINGS AND RECOMMENDATIONS 

-o0oOn May 23, 2005, this court denied plaintiffs’ motion for

default judgment and directed plaintiffs to show cause why the

default of defendants Rakesh Sehgal and Sehgal Inc. should not be

set aside and this case dismissed for failure to effect service

of process.

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2

Plaintiffs commenced this action September 24, 2004,

alleging civil rights violations under the Americans with

Disabilities Act, 42 U.S.C. §§ 12101 et seq., California Civil

Code §§ 51 et seq., 54, 54.1 and 54.3; California Health and

Safety Code §§ 19955 et seq., and California Business and

Professions Code §§ 17200 et seq. Plaintiff Marshall Loskot is a

member of co-plaintiff “Disability Rights Enforcement Education,

Services: Helping You Help Others” (“DREES”), a nonprofit

corporation and charitable organization dedicated to the advocacy

and enforcement of disability rights. See Declaration of Patrick

Connally, DREES President. Mr. Loskot is a paraplegic who uses a

wheelchair and alleges that on November 21, 2003, and August 24,

2004, he patronized United Petroleum Truck Stop and experienced

significant difficulty parking, using the fuel pumps, and

accessing the lobby and restroom. 

On March 1, 2005, plaintiffs filed an application for entry

of default against Sehgal and Sehgal Inc., alleging they had

failed to respond to the complaint despite timely service of

process. The Clerk of Court entered default against the Sehgal

defendants on March 2, 2005. The same day, the Honorable Garland

E. Burrell, Jr., dismissed United Petroleum Truck Stop, stating,

“Plaintiffs’ Status Report indicates Plaintiffs have no intention

of prosecuting this action against Defendant United Petroleum

Truck Stop, since Plaintiffs failed to mention that named entity

in their Status Report.” 

////

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3

On April 1, 2005, plaintiffs moved for default judgment 

against Sehgal and Sehgal Inc. The motion seeks over twenty

accommodations at United Petroleum Truck Stop, damages to Loskot

in the sum $8,000, and attorney fees and costs to Disability

Rights in the amount $12,625.52.

On May 23, 2005, this court denied plaintiffs’ motion and

ordered them to show cause why the Clerk’s defaults should not be

set aside due to plaintiffs’ failure to serve process. 

Apparently, substituted service of process had been attempted

upon Mauricio Rodriquez, who was described as “co-tenant” of

Rakesh Sehgal, at an apartment building in San Bruno, California. 

While Fed. R. Civ. P. 4(e)(2) permits substituted service of

process upon a defendant by leaving a copy of the summons and

complaint “at the individual’s dwelling house or usual place of

abode with some person of suitable age and discretion then

residing therein,” plaintiffs failed to demonstrate that summons

and complaint were left at Sehgal’s abode or that Mr. Rodriquez

“resided therein.”

Plaintiffs now clarify that Mr. Rodriquez is, or at least

was at the time of service, a roommate of Rakesh Sehgal and that

plaintiffs timely and properly effected substituted service of

process upon Rakesh Sehgal and Sehgal Inc.

Accordingly, the order to show cause is discharged. 

However, for the reasons set forth below, I recommend that

plaintiff’s motion for default judgment be denied. 

////

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1 A court should consider the following factors before entering default

judgment: “(1) the possibility of prejudice to the plaintiff, (2) the merits

of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4)

the sum of money at stake in the action, (5) the possibility of a dispute

concerning material facts, (6) whether the default was due to excusable

neglect, and (7) the strong policy underlying the Federal Rules of Civil

Procedure favoring decisions on the merits.” Eitel v. McCool, 782 F.2d 1470,

1472 (9th Cir. 1986), at 1471-1472, citing 6 Moore's Federal Practice ¶ 55-

05[2], at 55-24 to 55-26.

4

By their default the Sehgal defendants admit the wellpleaded allegations of the complaint with the exception of 

damages. Fed. R. Civ. P. 8(d). However, there is no matter of

right to the entry of default judgment and it is within the

court’s reasonable discretion, even when the defendant is

technically in default. Lewis v. Lynn, 236 F.3d 766, 767 (5th

Cir. 2001); Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986);

Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). 

Among the factors for the court’s consideration is the

sufficiency of the complaint.1 Only well-pleaded allegations are

taken as admitted on a default judgment. Benny v. Pipes, 799

F.2d 489, 495 (9th Cir. 1986), as amended, 807 F. 2d 1514

(citations omitted). Facts that are not established by the

pleadings of the prevailing party, or claims that are not well

pleaded, are not binding and cannot support the judgment. 

Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (citation

omitted). Necessary facts not contained in the pleadings and

claims that are legally insufficient are not established by

default. Cripps v. Life Ins. Co. of North America, 980 F.2d

1261, 1267 (9th Cir. 1992).

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2 Paragraphs 7, 8 and 9 of plaintiffs’ complaint allege:

7. Defendants RAKESH SEHGAL, an individual; and SEHGAL, INC., a California

corporation (hereinafter alternatively collectively referred to as

“defendants”) are the owners and operators, lessors and/or lessees, or

agents of the owners, lessors and/or lessees, and/or alter egos,

franchisors and/or franchisees, of the building and/or buildings which

constitute a public facility in and of itself, occupied by the UNITED

PETROLEUM TRUCK STOP, a public accommodation located at/near 29770

County Road #8, Dunnigan, California, and subject to the requirements of

California state law requiring full and equal access to public

facilities pursuant to 1995 of the Health & Safety Code, and §§51, 51.5,

52(a), 54.1 and 54.3 of the Civil Code, and subject to Title III of the

Americans with Disabilities Act of 1990, and to all other legal

requirements referred to in this complaint.

5

This complaint fails to establish that the Sehgal defendants

are responsible for, or have authority to make modifications at,

United Petroleum Truck Stop. 

As the court stated in its May 23, 2005, order, “no

allegation of the complaint, if deemed admitted, by Sehgal or

Sehgal, Inc., would entitle plaintiff to the requested injunctive

relief at the United Petroleum Truck Stop facility. Plaintiffs

avered they did not know the true names of defendants Rakesh

Sehgal, an individual; and Sehgal, Inc., a California

corporation, their business capacities, their ownership

connection to the property and business, nor their relative

responsibilities in causing the access violations herein

complained of, and allege a joint venture and common enterprise

by all defendants. Complaint, para. [10].)” May 23, 2005, Order

at p. 3. While plaintiffs now concede the obfuscation of

paragraph 10 they assert it “is not determinative” and that

paragraphs 7, 8 and 92 demonstrate the Sehgal defendants own and

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8. At all times relevant to this complaint, defendants RAKESH SEHGAL, an

individual; and SEHGAL, INC., a California corporation, are the lessees,

or agents of the lessees, and/or lessors, of said premises, and/or alter

egos of the lessees, lessors and their agents, and own and operate in

joint enterprise the subject UNITED PETROLEUM TRUCK STOP as a public

facility at/near 29770 County Road #8, Dunnigan, California. This

business is open to the general public and conducts business therein. 

The business operating on said premises is a “public accommodation” or

“public facility” subject to the requirements of California Civil Code

§54, et seq. Plaintiffs do not know the relative responsibilities of

each of the defendants in the operation of the facilities herein

complained of, and allege a joint venture and common enterprise by all

such defendants.

9. At all times relevant to this complaint, defendants RAKESH SEHGAL, an

individual; and SEHGAL, INC., a California corporation are the

landlords/lessors, tenants/lessees and the owners and operators of the

subject UNITED PETROLEUM TRUCK STOP, a public facility located at/near

29770 County Road #8, Dunnigan, California. As such, these defendants

are jointly and severally responsible to identify and remove

architectural barriers pursuant to Code of Federal Regulations title 28,

section 36.201(b), which states in pertinent part:

§ 36.201 General

(b) Landlord and tenant responsibilities. Both the

landlord who owns the building that houses a place of

public accommodation and the tenant who owns or

operates the place of public accommodation are public

accommodations subject to the requirements of this

part. As between the parties, allocation of

responsibility for complying with this obligations of

this part may be determined by lease or other

contract.

6

operate United Petroleum Truck Stop. 

Paragraph 7 states alternatively that the Sehgal defendants

“are the owners and operators, lessors and/or lessees, or agents

of the owners, lessors and/or lessees, and/or alter egos,

franchisors and/or franchisees, of the building and/or buildings

which constitute a public facility in and of itself, occupied by

the UNITED PETROLEUM TRUCK STOP;” paragraph 8 provides that the

Sehgal defendants “are the lessees, or agents of the lessees,

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7

and/or lessors, of said premises, and/or alter egos of the

lessees, lessors and their agents, and own and operate in joint

enterprise the subject UNITED PETROLEUM TRUCK STOP,” but also

states, “Plaintiffs do not know the relative responsibilities of

each of the defendants in the operation of the facilities herein

complained of, and allege a joint venture and common enterprise

by all such defendants;” and paragraph 9 provides that the Sehgal

defendants “are the landlords/lessors, tenants/lessees and the

owners and operators of the subject UNITED PETROLEUM TRUCK STOP,”

and “these defendants are jointly and severally responsible to

identify and remove architectural barriers,” but cites 28 C.F.R.

§ 36.201(b) which provides that the allocation of responsibility

between a landlord and tenant of a public accommodation “may be

determined by lease or other contract.”

The admitted allegations of the complaint are insufficient

to establish that the Sehgal defendants are responsible for the

existing accommodations at United Petroleum Truck Stop or have

any responsibility or authority to modify those accommodations. 

Accordingly, I recommend plaintiff’s motion for default

judgment be denied.

These findings and recommendations are submitted to the

Honorable Garland E. Burrell, Jr., the United States District

Judge assigned to this case. 28 U.S.C. § 636(b)(l). Written

objections may be filed within ten days after being served with

these findings and recommendations. The document should be

captioned “Objections to Magistrate Judge’s Findings and

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8

Recommendations.” The failure to file objections within the

specified time may waive the right to appeal the District Court’s

order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Dated: December 12, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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