Burrell v. Twin Goose LLC et al
ORDER: Thus, having reviewed the motion, pleadings, file, Report, and record in this case, and having conducted a de novo review of that portion of the Report to which objection was made, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court as modified by this order. Accordingly, the court and overrules Plaintiff's objections; denies without prejudice Plaintiff's Motion for Default Judgment (Doc. 11 ) with respect to his ADA claim for alleged violations of § 12182(b)(2)(A)(iv); grants his Motion to Dismiss Remaining Claims (Doc. 11 ); and dismisses without prejudice the following claims: (1) discrimination under section 121.003(a) of the T exas Human Resources Code for failure to make public accommodations; and (2) violation of the ADA for improper alterations. Any amended motion for default judgment must be filed by October 23, 2017, and cure the deficiencies noted in this order. (Ordered by Judge Sam A Lindsay on 9/25/2017) (ndt)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
TWIN GOOSE, LLC and JIAMUL
CORPORATION d/b/a MAMA’S
Civil Action No. 3:16-CV-1079-L
On January 19, 2017, United States Magistrate David L. Horan’s entered the Findings,
Conclusions and Recommendation of the United States Magistrate Judge (“Report”), recommending
that the court deny without prejudice Plaintiff’s Motion for Default Judgment and to Dismiss
Remaining Claims (Doc. 11), filed August 30, 2016. Plaintiff filed objections to the Report.
Plaintiff moved for default judgment with respect to his claim for alleged violations of 42
U.S.C. § 12182(a) of the Americans with Disabilities Act (“ADA”) for Defendants’ alleged failure
to accommodate where removal of architectural barriers is readily achievable. In his motion for
default judgment, Plaintiff requests in his motion and objections to the Report that the following
remaining claims be dismissed without prejudice: (1) discrimination under section 121.003(a) of the
Texas Human Resources Code for failure to make public accommodations; and (2) violation of the
ADA for improper alterations.
For relief, Plaintiff requests in his Complaint, with respect to the claim for which he seeks
entry of a default judgment, that the court order Defendants to bring their business into compliance
Order – Page 1
with state and federal law and cease discriminating against Plaintiff now and in the future. He
requests that the court “enjoin the Defendants from maintaining [sic] and . . . require that the
Defendants remove the architectural barriers that interfere with [his] right to the full and equal
enjoyment of the goods, services, facilities, privileges, or accommodations of the Defendants at this
Business.” Pl.’s Compl. 1. “Plaintiff also seeks a permanent injunction to prevent the Defendants
from engaging in these unlawful practices, as well as declaratory relief and attorney’s fees and costs
of litigation.” Id. Plaintiff alleges that “the parking” at Mama’s Daughter’s Diner “is not
accessible”; “the route in from the parking is not accessible,” “the seating inside the [restaurant] is
not accessible”; and “there is no accessible route to the sidewalk next to the [restaurant].” Id. at 5.
Plaintiff does not elaborate on why he believes the parking, the route from the parking area to the
entrance of the restaurant, or the seating inside the restaurant are not accessible.
In his motion for default judgment, Plaintiff requests injunctive relief in the form of an order
requiring Defendants to:
remove the architectural barriers and make the modifications necessary to bring the
Property that is the subject of this suit into compliance with the standards set forth
in the ADAAG within six (6) months from the date of this order in the following
1. Provide accessible parking in the required amount and an accessible route
from that parking through the front door of the Restaurant.
2. Provide accessible seating in the Restaurant in the required amount and
3. Provide access to an accessible restroom for the disabled patrons.
4. Provide an accessible route from the sidewalk to the front door of the
Pl.’s Mot. 5-6.
Order – Page 2
The magistrate judge recommended that Plaintiff’s motion for default judgment and request
for injunctive relief be denied without prejudice because Plaintiff has not established the
requirements for a permanent injunction under federal law.
In his objections to the Report, Plaintiff contends that he is not required to prove the four
requirements for injunctive relief under federal law. Plaintiff contends that he need only prove
Defendants violated the ADA by failing to modify the property in question, which is deemed
discriminatory as a result of the violations alleged.
Title III of the ADA prohibits discrimination against persons with disabilities in places of
public accommodation. 42 U.S.C. § 12182(a). The ADA provides a private right of action for
injunctive relief for “any person who is being subjected to discrimination on the basis of disability
in violation of” section 12182(b)(2)(A)(iv) of the ADA. Id. § 12182(a)(1)-(2). Under Title III of
the ADA, “discrimination” specifically includes “failure to remove architectural barriers . . . in
existing facilities . . . where such removal is readily achievable.” Id. § 12182(b)(2)(A)(iv). The
ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much
difficulty or expense.” Id. § 12181(9). The following factors are considered in determining whether
removal of architectural barriers is readily achievable: (1) nature and cost of the action; (2) overall
financial resources of the facility or facilities involved; (3) number of persons employed at such
facility; (4) effect on expenses and resources; (5) impact of such action upon the operation of the
facility; (6) overall financial resources of the covered entity; (7) overall size of the business of a
covered entity with respect to the number of its employees; (8) the number, type, and location of its
facilities; (9) type of operation or operations of the covered entity, including composition, structure,
Order – Page 3
and functions of the workforce of such entity; and (10) geographic separateness, administrative or
fiscal relationship of the facility or facilities in question to the covered entity. Id. § 12181(9)(A)-(D).
Title III of the ADA is silent as to which party bears the burden of proving that removal of
an architectural barrier is, or is not, readily achievable. The Fifth Circuit previously addressed the
burden of proof in a case involving a reasonable modification claim under § 12182(b)(2)(A)(ii) and
held that a plaintiff bears the initial burden of proving that a modification was requested and that the
requested modification was reasonable. Johnson v. Gambrinus Co./Spoetzl Brewery, 116 F.3d 1052,
1059 (5th Cir. 1997). Applying the reasoning in Johnson to Plaintiff’s claims for alleged violations
of § 12182(b)(2)(A)(iv), the court concludes that Plaintiff in this case has the initial burden of
establishing that he requested the modifications at issue, and the requested modifications are readily
Even if the court accepts as true the allegations in Plaintiff’s Complaint, the allegations
regarding the architectural barriers, requested modifications, the reasonableness of the requested
modifications, and whether the requested modifications are readily achievable are entirely conclusory
and lacking in factual detail and, therefore, insufficient to support entry of a default judgment against
Defendants on his claim for violation of § 12182(b)(2)(A)(iv). Moreover, Plaintiff’s Complaint does
not address all of the specific accommodations that are requested in his motion for default judgment.
The court was unable to find any Fifth Circuit case that supports Plaintiff’s contention that
he need only prove Defendants violated the ADA by failing to modify the property in question to be
entitled to a permanent injunction. Ordinarily, injunctive relief is not awarded automatically in all
cases, even when a violation of the law or statute is established. Winter v. NRDC, Inc., 555 U.S. 7,
32 (2008) (“An injunction is a matter of equitable discretion; it does not follow from success on the
Order – Page 4
merits as a matter of course.”); Weinberger v. Romero–Barcelo, 456 U.S. 305, 320 (1982)
(explaining that the “exercise of equitable discretion . . . must include the ability to deny as well as
grant injunctive relief,” and the specific authority to ensure compliance with a state statute does not
require a federal judge exercising equitable power to mechanically grant an injunction for every
violation of the law); Simmons v. Conger, 86 F.3d 1080, 1085 (11th Cir. 1996) (“Simply because
prospective injunctive relief is available . . . does not mean that such equitable relief is
Here, even assuming, as Plaintiff contends, that he need only establish a violation of the
ADA, the court concludes that he has failed to establish a violation because, as explained, his
pleadings are inadequate in this regard, and no evidence was submitted in support of his motion for
default judgment. On the other hand, the court sees no reasons to deny Plaintiff’s request to dismiss
without prejudice his other claims. Thus, having reviewed the motion, pleadings, file, Report, and
record in this case, and having conducted a de novo review of that portion of the Report to which
objection was made, the court determines that the findings and conclusions of the magistrate judge
are correct, and accepts them as those of the court as modified by this order.
Accordingly, the court and overrules Plaintiff’s objections; denies without prejudice
Plaintiff’s Motion for Default Judgment (Doc. 11) with respect to his ADA claim for alleged
violations of § 12182(b)(2)(A)(iv); grants his Motion to Dismiss Remaining Claims (Doc. 11); and
dismisses without prejudice the following claims: (1) discrimination under section 121.003(a) of
the Texas Human Resources Code for failure to make public accommodations; and (2) violation of
the ADA for improper alterations. Any amended motion for default judgment must be filed by
October 23, 2017, and cure the deficiencies noted in this order. The motion must also include legal
Order – Page 5
authority, preferably from the Fifth Circuit or United State Supreme Court, that supports Plaintiff’s
contention that proof alone of a violation of § 12182(b)(2)(A)(iv) of the ADA mandates entry of a
permanent injunction against Defendants. Failure to comply with this order will result in dismissal
without prejudice of this action under Federal Rule of Civil Procedure 41(b)(2) for failure to comply
with a court order or failure to prosecute.
It is so ordered this 25th day of September, 2017.
Sam A. Lindsay
United States District Judge
Order – Page 6
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