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Kennedy v. Orltell, LLC

United States District Court, M.D. Florida, Orlando Division

February 16, 2018

PATRICIA KENNEDY, Plaintiff,
v.
ORLTEL, LLC, Defendant.

          REPORT AND RECOMMENDATION

          THOMAS B. SMITH UNITED STATES MAGISTRATE JUDGE.

         Pending 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.

         Background

         Plaintiff 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, [1]which was referred to me for entry of a report and recommendation (Doc. 13).

         Discussion

         A final 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).[2] The Court must consider the appropriateness of the clerk's default and examine anew the sufficiency of the complaint.

         A. The Clerk's Entry of Default Was Appropriate

         A 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 defendant[.]

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.[3] 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).

         Plaintiff's 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.[4] 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.

         B. Plaintiff's Complaint is Deficient

         Plaintiff's 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).

         Second, Plaintiff alleges that Defendant's website infringes on her rights guaranteed by the ADA and related regulations, but she doesn't say how ...


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