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McNeil v. Shoppes at Southwinds II LLC

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

June 24, 2019

MICHAEL R. MCNEIL, Plaintiff,
v.
SHOPPES AT SOUTHWINDS II 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 (Doc. 17). The motion consists of six substantive pages, with no exhibits or supporting affidavits tendered. Upon due consideration, I respectfully recommend that the motion be DENIED.

         Background

         Plaintiff brings this Americans with Disabilities Act case for injunctive relief and attorney's fees and costs pursuant to 42 U.S.C. § 12181, et seq. (the "ADA") (Doc. 1). He sued two entities - Defendant Shoppes at Southwinds II LLC, (“Shoppes”) and Fischer Way Corp., a Florida Corporation, d/b/a SUBWAY (“Subway”). Subway was served and shortly thereafter, Plaintiff voluntarily dismissed it with prejudice (Docs. 11, 13). Shoppes was served (Doc.14) and has failed to respond. A clerk's default was entered against it on May 15, 2019 (Doc. 16). This motion followed and was referred to me.

         Discussion

         Standard of Review

         A district court may enter a default judgment against a properly served defendant who fails to defend or otherwise appear pursuant to Federal Rule of Civil Procedure 55(b)(2). In defaulting, a defendant “admit[s] the plaintiff's well-pleaded allegations of fact” for purposes of liability. Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir.1987). Nonetheless, a court may enter a default judgment only if the factual allegations of the complaint, which are assumed to be true, provide a sufficient legal basis for entry of a default judgment. Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) ("The defendant is not held to admit facts that are not well-pleaded or to admit conclusions of law. In short, despite occasional statements to the contrary, a default is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover").

         The United States Supreme Court has noted the difference between well-pleaded facts and conclusory allegations. In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the court explained that a complaint need not contain detailed factual allegations, but it demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. at 678 (internal citations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the plaintiff is entitled to relief.'" Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)). This analysis is equally applicable to a motion for default judgment. See De Lotta v. Dezenzo's Italian Restaurant, Inc., No. 6:08-cv-2033-Orl-22KRS, 2009 WL 4349806, *5 (M.D. Fla. November 24, 2009).

         “Once liability is established, the court turns to the issue of relief.” Enpat, Inc. v. Budnic, 773 F.Supp.2d 1311, 1313 (M.D. Fla. 2011). “Pursuant to Federal Rule of Civil Procedure 54(c), ‘[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings,' and a court may conduct hearings when it needs to determine the amount of damages, establish the truth of any allegation by evidence, or investigate any other matter.” Enpat, 773 F.Supp.2d at 1313 (citing Fed.R.Civ.P. 55(b)(2)). Where all the essential evidence is of record, an evidentiary hearing on damages is not required. SEC v. Smyth, 420 F.3d 1225, 1232 n. 13 (11th Cir. 2005). In other words, in order to enter a default judgment, the Court must find that an adequate showing has been made as to liability and the kind or amount of damages or other relief.

         The Allegations of the Complaint

         Plaintiff is a mobility impaired individual who requires the use of a wheelchair to ambulate (Doc. 1, ¶ 3). He alleges that both Defendants lease or operate the property that is the subject of this lawsuit and both are the owners of the improvements at issue:

6. Upon information and belief, FISCHER WAY CORP., a Florida Corporation, is the lessee and/or operator of the real property (the “Subject Facility”), and the owner of the improvements where the Subject Facility is located which is the subject of this action, the establishment commonly referred to as SUBWAY, located at 3751 S. Clyde Morris Boulevard, in Port Orange, Florida.
7. Upon information and belief, SHOPPES AT SOUTHWINDS II LLC, a Florida Limited Liability Company, is the lessor, operator and/or owner of the real property (the “Subject Facility”), and the owner of the improvements where the Subject Facilities are located which are the subjects of this action.

(Doc. 1, ¶¶ 6, 7). Plaintiff alleges that “Defendants” are places of public accommodation under the ADA, ” and he “personally visited Defendants' Subject Facilities, but was denied full and equal access to, and full and equal enjoyment of, the facilities services, goods, privileges and accommodations offered within Defendants' Subject Facilities ...


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