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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SCOTT N. JOHNSON,

Plaintiff, CIV-S-04-2501 WBS GGH

vs.

MICHAEL & AMY WHITING, et al.,

Defendants. ORDER

__________________________________

On November 23, 2004, plaintiff filed the complaint in

this action against defendants Michael and Amy Whiting,

individually and doing business as Whiting’s Oak Furniture,

alleging defendants denied him access to their retail store in

violation of the Americans With Disabilities Act and state law. 

The summons and complaint were personally served on defendant

Michael Whiting, on December 20, 2004. Defendant has failed to

file an answer or otherwise appear in this action. On August 2,

2005, the clerk entered default against defendant Michael

Whiting, individually and dba Whiting’s Furniture. Notice of

entry of default and the instant motion for default judgment and

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supporting papers were not served on defendant because there was

no requirement that a defendant who has never appeared in the

action be given notice of plaintiff’s motion for default

judgment. See LG Electronics, Inc. v. Advance Creative Computer

Corp., 212 F. Supp. 2d 1171, 1174 (N.D. Cal., 2002). 

On October 13, 2005, the magistrate judge filed

findings and recommendations herein which were served on the

parties and which contained notice that any objections to the

findings and recommendations were to be filed within ten days. 

No objections were filed. Accordingly, the court presumes any

findings of fact are correct. See Orland v. United States, 602

F.2d 207, 208 (9th Cir. 1999). The magistrate judge’s

conclusions of law are reviewed de novo. See Britt v. Simi

Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983).

In his motion for default judgment, plaintiff asks for

judgment only against defendant Michael Whiting, individually and

doing business as Whiting’s Oak Furniture, and seeks only

damages, pursuant to the California Civil Code Section 52(a) in

the amount of $4,000. He does not ask the court for injunctive

relief or any other relief on his federal claim, nor does he ask

for any relief against defendants Amy Whiting, Virgil R. Smith,

Arcelia Smith or any other defendants.

Ordinarily, the court would be hesitant to enter

judgment for damages only on the pendent state claims when no

relief is granted on the federal claims. See 28 U.S.C. §

1367(c). But since defendant apparently did not have enough

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interest in the outcome of this case to file any responsive

pleading or to object to the relief requested, the court presumes

no prejudice to defendant by granting the requested relief.

Accordingly, the court having reviewed the applicable

legal standards and, good cause appearing, concludes that it is

appropriate to adopt the Proposed Findings and Recommendations in

full.

IT IS THEREFORE ORDERED that:

1. The Proposed Findings and Recommendations filed

October 13, 2005, are ADOPTED; and

2. Plaintiffs’ motion for entry of default judgment 

is GRANTED as to Michael Whiting dba Whiting’s Furniture. 

Judgment is rendered in the amount of $4,000; and

3. This action is dismissed as against all other

defendants, pursuant to Rule 4(m) of the Federal Rules of Civil

Procedure, for failure to effect service within the required

period of time.

DATED: December 7, 2005

Case 2:04-cv-02501-WBS-GGH Document 27 Filed 12/09/05 Page 3 of 3