Kennedy v. SWF Investments, L.L.C.
Filing
25
OPINION AND ORDER denying 23 Motion for Default Judgment with leave to amend the Complaint to properly state a claim for relief; dismissing 1 Complaint without prejudice to filing an Amended Complaint within 14 days. Signed by Judge John E. Steele on 8/21/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA
individually,
KENNEDY,
Plaintiff,
v.
Case No:
2:16-cv-635-FtM-99MRM
SWF INVESTMENTS, L.L.C.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
Entry of Default Judgment (Doc. #23) filed on June 27, 2017.
response has been filed and the time to do so has expired.
No
For
the reasons set forth below, the motion is denied.
I.
On
August
15,
2016,
Patricia
Kennedy
filed
a
Complaint
alleging violations of Title III of the Americans with Disabilities
Act (ADA).
(Doc. #1.)
As alleged in plaintiff’s Complaint,
Kennedy, a resident of Broward County, Florida, is disabled as
defined by the ADA and uses a wheelchair for mobility purposes.
(Id. at ¶ 1.)
On a date unknown, Kennedy visited the San Carlos
Plaza in Lee County, Florida and encountered barriers to access.
(Id.
at
¶
8.)
Plaintiff
fails
to
identify
any
particular
businesses the visited while at the Plaza, but alleges that her
access and/or full and equal enjoyment of the goods and services
offered by the defendant’s facility and was denied and/or limited
because of her disabilities and will be denied and/or limited in
the future unless the barriers to access found on the premises are
removed.
(Id. at ¶¶ 12-13.)
Plaintiff states that she is a
frequent visitor to the areas where defendant’s property is located
and intends to visit the premises in the near future to avail
herself of the goods and services offered at the property and to
determine whether the property is ADA compliant.
(Id. at ¶ 8.)
A “preliminary inspection” of the plaza showed specific barriers
to access listed in paragraph 7 of the Complaint.
states that the list is “not exhaustive.”
The Complaint
(Id. at ¶ 7.)
II.
“The defendant, by his default, admits the plaintiff’s wellpleaded allegations of fact, is concluded on those facts by the
judgment, and is barred from contesting on appeal the facts thus
established.... A default judgment is unassailable on the merits
but only so far as it is supported by well-pleaded allegations,
assumed to be true.”
Nat’l
Bank,
omitted). 1
515
F.2d
Nishimatsu Constr. Co., Ltd., v. Houston
1200,
1206
(5th
Cir.
1975)
(citations
The sufficiency standard is that “necessary to survive
a motion to dismiss for failure to state a claim.”
1
Id.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc) the Eleventh Circuit adopted as binding
precedent all the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
- 2 -
Even construing the Complaint liberally, plaintiff does not
identify where in the shopping plaza she encountered the barriers.
Although
a
plaintiff
is
not
required
to
plead
with
great
specificity, the vague and general allegations of the Complaint
(specifically paragraph 7) would make it nearly impossible for the
defendant to answer the allegations.
In
addition,
paragraph
16
that
the
Court
notes
“paragraph
that
7
not
is
plaintiff
an
states
exclusive
list
at
of
defendant’s ADA violations,” and that “plaintiff requires the
inspection of defendant’s place of accommodation in order to
photograph and measure all the discriminatory acts violating the
ADA and all of the barriers to access.”
(Doc. #1, ¶ 16.)
Because
plaintiff is requesting that the cost of the expert’s review,
inspection, and report be awarded in its Motion (Doc. #23-3), the
Court assumes that this inspection has already taken place.
Yet
plaintiff’s Motion for Default Judgment only requests that the
Court’s entry of judgment mandate that defendant bring its facility
into full compliance with the ADA.
Any future request for judgment
should include what goods, services, and facilities need to be
brought into compliance with the ADA, which plaintiff is presumably
aware of from its expert’s report.
Accordingly, it is hereby
ORDERED:
- 3 -
1. Plaintiff’s Motion for Entry of Default Judgment (Doc.
#23) is DENIED with leave to amend the Complaint to properly state
a claim for relief.
2.
Plaintiff’s
Complaint
(Doc.
#1)
is
dismissed
without
prejudice to filing an Amended Complaint within FOURTEEN (14) DAYS
of this Opinion and Order.
If no Amended Complaint is filed, the
case will be dismissed without prejudice and without further
notice.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2017.
Copies:
Counsel of Record
- 4 -
21st
day
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