United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's Motion for Entry of
Judgment After Default and Verified Application for Attorney
Fees, Costs, Expert Fees and Litigation Expenses (Doc. 13).
After due consideration, I respectfully recommend that the
motion be denied.
Patricia Kennedy's physical condition requires her to
ambulate with an assistive device (Doc. 1, ¶ 1). She is
a self-described “advocate of the rights of similarly
situated disabled persons and is a ‘tester' for the
purpose of asserting her civil rights and monitoring,
ensuring, and determining whether places of public
accommodation and their websites are in compliance with the
ADA.” (Id. at ¶ 2). Here, Plaintiff
alleges that Defendant ORLTEL, LLC d/b/a Orlando Continental
Plaza Hotel is in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12181
et seq. and related regulations found in 28 C.F.R.
§§ 36.201(a) and 36.104 (Doc. 1). She complains
that Defendant has failed to comply with the requirements set
forth in 28 C.F.R. § 36.302(e)(1) (Id. at
¶¶ 10-11). She also alleges that Defendant's
website infringes on her right to travel free of
discrimination and violates the ADA and related regulations
(Id. at ¶ 13). Plaintiff claims that she has
suffered and will continue to suffer direct and indirect
injury as a result of Defendant's discrimination until it
is compelled to modify its website to comply with the
ADA's requirements (Id. at ¶ 14). She also
asserts that she does not have an adequate remedy at law, and
asks the Court to grant her injunctive relief (Id.
at 7). The Clerk entered a default against Defendant on
February 2, 2018 (Doc. 12) and on February 13, 2018,
Plaintiff filed the instant motion for entry of final default
judgment, which was referred to me for entry of a
report and recommendation (Doc. 13).
default judgment does not automatically follow from a
clerk's default. See DIRECTV, Inc. v. Trawick,
359 F.Supp.2d 1204, 1206 (M.D. Ala. 2005) (The mere entry of
a default by the Clerk does not necessarily require the court
to enter a default judgment). There needs to be a sufficient
basis in the pleading to support the default judgment.
“The defendant is not held to admit facts that are not
well-pleaded or to admit conclusions of law. In short ... a
default is not treated as an absolute confession of the
defendant of his liability and of the plaintiff's right
to recover.” Nishimatsu Constr. Co., Ltd. v.
Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.
1975). The Court must consider the
appropriateness of the clerk's default and examine anew
the sufficiency of the complaint.
The Clerk's Entry of Default Was Appropriate
plaintiff may serve a corporate defendant by
[D]elivering a copy of the summons and of the complaint to an
officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of
process and-if the agent is one authorized by statute and the
statute so requires-by also mailing a copy of each to the
Fed. R. Civ. P. 4(h)(1)(B). A plaintiff may also serve a
defendant by “following state law for serving a summons
in an action brought in courts of general jurisdiction in the
state where the district court is located or where service is
made[.]” Fed.R.Civ.P. 4(h)(1)(A), 4(e)(1). Florida
Statutes permit process to be served on a corporation by
serving any one of the following persons: (a) the president,
vice president or other corporate head; (b) the cashier,
treasurer, secretary, or general manager; (c) any corporate
director; (d) any officer or business agent residing in
Florida; (e) an agent designated by the corporation under
Fla. Stat. 48.091. See Fla. Stat. § 48.081. If
the address provided for the registered agent, officer, or
director is a residence or private residence, “service
on the corporation may be [made by] serving the registered
agent, officer, or director in accordance with s.
48.031.” Id. at § 48.081(3)(b). Section
48.031, permits a process server to effect service on
“any person residing therein who is 15 years of age or
older ...” Fla. Stat. § 48.031(1)(a).
return of service states that Ken Patel is Defendant's
registered agent (Doc. 10). The official address listed for
Mr. Patel is: 6825 Visitors Circle, Orlando, FL
32819. Plaintiff served Defendant on December 1,
2017 by serving Nayrine Rubio “as MANAGER for ORLTEL,
LLC.” (Id.). Pursuant to Fla. Stat. §
48.091, service on Defendant was proper. Upon being served
with the summons and complaint, Defendant was required to
respond on or before December 22, 2017. See
Fed.R.Civ.P. 12(a)(1)(A)(i) (“A defendant must serve an
answer within 21 days after being served with the summons and
complaint[.]”). Defendant failed to respond to the
complaint and the time to do so has passed. Thus, the
clerk's default was properly entered.
Plaintiff's Complaint is Deficient
complaint is deficient in multiple ways so as to preclude
entry of final default judgment. First, she has failed to
state a cognizable claim. For a claim of discrimination under
Title III of the ADA, a plaintiff must show: (1) she is
disabled within the meaning of the ADA; (2) the defendant
owns, leases, or operates a place of public accommodation;
and (3) the defendant discriminated against Petitioner within
the meaning of the ADA. 42 U.S.C. § 12182(a). Plaintiff
alleges that Defendant failed to comply with the requirements
set forth in 28 C.F.R. § 36.302(e)(1) but fails to state
with any specificity how Defendant failed to comply
(Doc. 1 at ¶¶ 10-11).
Plaintiff alleges that Defendant's website infringes on
her rights guaranteed by the ADA and related regulations, but
she doesn't say how ...