Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Norman Hoewischer v. Joe's Properties

January 18, 2012


The opinion of the court was delivered by: Monte C. Richardson United States Magistrate Judge


THIS CAUSE is before the Court on Plaintiff's Motion for Entry of Judgment After Default (Doc. 14) filed December 19, 2011, which was referred to the undersigned. In the Motion, Plaintiff Norman Hoewischer seeks entry of a default judgment against Defendant Joe's Properties, Inc. pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. To date, Defendant has not filed a response; therefore, the Court will treat the Motion as unopposed.


On August 2, 2011, Plaintiff filed this action against Defendant, seeking injunctive relief pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. ("ADA") and the ADA's Accessibility Guidelines, 28 C.F.R. Part 36 ("ADAAG"). (Doc. 1).

On September 7, 2011, Plaintiff perfected service of process on Defendant. (Doc. 7). On October 17, 2011, Defendant filed a pro se Answer. (Doc. 5). On October 18, 2011, the Court entered an Order directing Defendant corporation to hire legal counsel and have said counsel file a notice of appearance or to file a motion seeking to waive the requirement to hire counsel no later than November 11, 2011.*fn1 (Doc. 6). When Defendant failed to respond, the Court entered an Order to Show Cause directing Defendant to file a written response as to why sanctions, including entry of a default, should not be imposed. (Doc. 10). Defendant again failed to file a response and a Clerk's Default was entered on December 5, 2011. (Docs. 11, 12). On December 19, 2011, Plaintiff filed the instant Motion for Judgment After Default (Doc. 14), which is now ripe for judicial review.


Rule 55 of the Federal Rules of Civil Procedure establishes a two-step process for obtaining a default judgment. First, when the defendant fails to plead or otherwise defend the lawsuit, the clerk of court is authorized to enter a clerk's default against the defendant. Fed. R. Civ. P. 55(a). Second, after receiving the clerk's default, the court may enter a default judgment against the defendant for not appearing. Fed. R. Civ. P. 55(b). A default judgment may be entered "against a defendant who never appears or answers a complaint, for in such circumstances the case never has been placed at issue." Solaroll Shade and Shutter Corp., Inc. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986).

The law is well settled that through his or her default, a defendant "admit[s] [a] plaintiff's well-pleaded allegations of fact ..."Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). However, "a defendant's default does not in itself warrant the court entering a default judgment." Nishimatsu, 515 F.2d at 1206; see also Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353, 1356 (S.D. Ga. 2004) (stating that "[a] motion for default judgment is not granted as a matter of right"). Indeed, a sufficient basis must exist in the pleadings for the judgment entered. A defendant "is not held to admit facts that are not well-pleaded or to admit conclusions of law." Id.

Rule 8 provides that a complaint must include (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for relief. Fed. R. Civ. P. 8(a). A complaint meets the requirements of Rule 8, if in light of the nature of the action, the complaint provides factual allegations, which are assumed to be true, sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (U.S. 2007).

However, although a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555 (citations omitted). Indeed, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[,]" which simply "are not entitled to [an] assumption of truth." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951, 173 L. Ed. 2d 868 (2009) Thus, in ruling on a motion for final default judgment, the Court must determine whether a sufficient factual basis exists in the complaint for a judgment to be entered. See Nishimatsu, 515 F.2d at 1206.


In order to prevail under Title III of the ADA, a plaintiff generally has the burden of proving: (1) that he is an individual with a disability; (2) that defendant is a place of public accommodation; and (3) that defendant denied his full and equal enjoyment of the goods, services, facilities or privileges offered by defendant (4) on the basis of his disability. Schiavo ex rel. Schindler v. Schiavo, 358 F. Supp. 2d 1161, 1165 (M.D. Fla. 2005) (citation omitted), aff'd, 403 F.3d 1289 (11th Cir. 2005). "Further, if the claim alleges discrimination due to an architectural barrier, the plaintiff is also required to show that it is a barrier prohibited by the ADA, the removal of which is 'readily achievable.'" Pinero v. 4800 W. Flagler, L.L.C., 2011 U.S. Dist. LEXIS 9386, 2011 WL 346082, at *3 (S.D. Fla. Jan. 11, 2011) (citation omitted). "'Readily achievable' means easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9); see also Garthright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (11th Cir. 2006) (applying the "readily achievable" standard).

Additionally, "[a] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that he has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S. Ct. 1837, 164 L. Ed. 2d 641 (2006). "To issue a permanent injunction under the ADA ... the Court must apply the same factors as it would in any other case in which a plaintiff sought a permanent injunction." Wilson v. Broward Cnty., Fla., 2008 U.S. Dist. LEXIS 20017, 2008 WL 708180, at *1 (S.D. Fla. Mar. 14, 2008).

Upon review of the allegations in Plaintiff's Complaint, the Court concludes that Plaintiff has failed to allege sufficient facts to support a default judgment. The Complaint's ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.