Kennedy v. Taco City 3, Inc.
ORDER denying 13 Plaintiff's Motion for Default Judgment; adopting 16 Magistrate Judge Irick's Report and Recommendations. Signed by Judge Paul G. Byron on 2/9/2018. (ALJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:17-cv-634-Orl-40DCI
TACO CITY 3, INC.,
This cause is before the Court on Plaintiff’s Motion for Default Judgment (Doc. 13),
filed June 29, 2017. Magistrate Judge Daniel C. Irick issued a Report and
Recommendation (Doc. 16), recommending that the motion be denied without prejudice.
Plaintiff timely filed an objection on December 6, 2017. (Doc. 17).
Plaintiff initiated this action on April 10, 2017, alleging violations of Title III of the
American with Disabilities Act (“ADA”). Plaintiff complains that Defendant’s property is
non-compliant with multiple requirements of the ADA, including:
Defendant fails to adhere to a policy, practice and procedure to ensure that all
goods, services and facilities are readily accessible to and usable by the disabled.
Defendant fails to maintain its features to ensure that they are readily accessible
and usable by the disabled.
There is a lack of a compliant, accessible route connecting the disabled parking
spaces with all the goods, services and facilities of the property, with excessive
slopes, abrupt changes in level, unsecured floor mats/carpeting, and hazards on
There is an insufficient number of compliant parking spaces and access aisles,
with excessive slopes.
There are non-compliant restrooms, with improperly located amenities,
inaccessible commodes, lack of compliant grab bars, missing grab bars, flush
controls on wrong side, inaccessible sinks, non-compliant doorways, improper
door hardware, insufficient door clearance, insufficient maneuvering space, lack of
required clear floor spaces, and obstructions.
There is a lack of compliant accessible seating and tables.
The transaction counter is inaccessible.
Plaintiff alleges that she has encountered these violations on the subject property
and, as a result, Defendant discriminated against her based on her disability by “denying
her access to full and equal enjoyment of the goods, services, facilities, privileges,
advantages and/or accommodations of its place of public accommodation or commercial
facility.” (Doc. 1, ¶ 17).
After a careful review of the Complaint, Magistrate Judge Irick recommends
Plaintiff’s Motion for Default Judgment be denied because the Complaint fails to state a
claim upon which relief can be granted. (Doc. 16). Plaintiff objects to this
STANDARD OF REVIEW
A district judge may designate a magistrate judge to hear and determine both
dispositive and non-dispositive matters. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(a),
(b). When a magistrate judge has been designated to decide a matter that is dispositive
in nature, as is the case here, the magistrate judge must issue a report to the district judge
specifying the magistrate judge’s proposed findings of fact and recommended disposition.
Fed. R. Civ. P. 72(b)(1). Any party who disagrees with the magistrate judge’s
recommended decision has fourteen days from the date of the recommendation to seek
the district judge’s review by filing objections to those specific portions of the
recommendation disagreed with. Fed. R. Civ. P. 72(b)(2). The district judge must then
make a de novo determination of each issue to which objection is made. Fed. R. Civ. P.
72(b)(3). De novo review “require[s] independent consideration of factual issues based
on the record.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (per
curiam). The district judge may then accept, reject, or modify the magistrate judge’s
recommendation, receive additional evidence or briefing from the parties, or return the
matter to the magistrate judge for further review. Fed. R. Civ. P. 72(b)(3).
“The mere entry of a default by the Clerk does not in itself warrant the entry of a
default judgment by the Court.” GMAC Commercial Mortg. Corp. v. Maitland Hotel
Assocs., Ltd., 218 F. Supp. 2d 1355, 1359 (M.D. Fla. 2002). Instead, before entering
default judgment, the Court must ensure that it has jurisdiction over the claims and parties,
and that the well-pled factual allegations of the complaint, which are deemed to be
admitted by virtue of the defendant’s default, adequately state a claim for relief. See
Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). 1 If the
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all of the decisions of the former Fifth
Circuit that were handed down prior to October 1, 1981.
facts alleged in the complaint do not state a claim for relief against the defendant, a default
judgment cannot be awarded. Id.
Plaintiff’s Complaint in this case fails to adequately state a claim for relief. In order
to state a claim under the Title III of the ADA, “a plaintiff generally has the burden of
proving: (1) that she is an individual with a disability; (2) that defendant is a place of public
accommodation; and (3) that defendant denied her full and equal enjoyment of the goods,
services, facilities or privileges offered by defendant (4) on the basis of her disability.”
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1299 (11th Cir. 2005). The Complaint
in this case only contains conclusory allegations that Plaintiff was denied full and equal
enjoyment of goods or services, stating merely that Defendants “deprive Plaintiff the full
and equal enjoyment of the goods, services, facilities, privileges and/or accommodations
available to the general public.” (Doc. 1, ¶ 12). The Complaint is lacking any factual
content to support these allegations.
The standard upon which this Court reviews the sufficiency of a complaint is clear:
“Mere ‘labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do,’ and a plaintiff cannot rely on ‘naked assertions devoid of further factual
enhancement.’” Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678)). Plaintiff does nothing more that recite the elements of a
claim for violation of Title III of the ADA. Without any factual details to support her
conclusory allegations, Plaintiff fails to state a claim upon which relief can be granted.
For the foregoing reasons, it is ORDERED AND ADJUDGED:
1. Plaintiff’s Objection to Magistrate Judge Irick’s Report and Recommendation
(Doc. 17) is OVERRULED.
2. Magistrate Judge Irick’s November 22, 2017, Report and Recommendation
(Doc. 16) is ADOPTED and made a part of this Order.
3. Plaintiff’s Motion for Default Judgment (Doc. 13) is DENIED WITHOUT
PREJUDICE. Plaintiff may file an Amended Motion for Default Judgment within
thirty (30) days of the date of this Order.
DONE AND ORDERED in Orlando, Florida, on February 9, 2018.
Copies furnished to:
Counsel of Record
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