Van Winkle v. JSCP, LLC., et al.
Filing
25
MEMORANDUM OPINION AND ORDER DENYING 24 MOTION for Entry of Default against Fishtales-Catfish and Shrimp, LLC. Van Winkle may file an amended motion for default judgment curing the deficiencies set forth in this order. The amended motion, if any, must be filed within fourteen days of the date of this order. (Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JAMES VAN WINKLE,
Plaintiff,
v.
JSCP, LLC., et al.,
Defendants.
§
§
§
§
§
§
§
§
§
CIVIL ACTION H-17-1986
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion for default judgment filed by plaintiff James Van
Winkle. Dkt. 24. Defendant Fishtales-Catfish and Shrimp, LLC (“Fishtales”) did not respond.
Having considered the motion and applicable law, the court is of the opinion that the motion should
be DENIED.
I. BACKGROUND
This is an American with Disabilities Act (“ADA”) case. On or about March 29, 2017, Van
Winkle visited Fishtales’s main place of business, located at 20126 Loop 494, New Caney, Texas
77357 (the “Subject Premises”), to conduct business and encountered architectural barriers to access
the premises. Dkt. 1 at 2. Specifically, Van Winkle alleges the following:
1.
2.
3.
4.
5.
He could not traverse through areas of the store because the required thirty-six inch
path was obstructed by objects and merchandise. Id. at 6.
The seating provided at the facility does not comply with the standards prescribed in
Section 4.32 of the Americans with Disabilities Act Accessibility Guidelines
(“ADAAG”) and Sections 226 and 902 of the 2010 ADA Standards. Id.
There are permanently designated interior spaces without proper signage. Id.
He could not transfer to the toilet without assistance because the grab bars were not
at the required locations. Id. at 7.
He had difficulty using the toilet without assistance because it is not mounted at the
required distance from the side wall. Id.
6.
7.
8.
9.
10.
He could not use the soap bottle, located in the restroom, without assistance because
it requires a tight grasp to operate. Id.
He could not use the restroom mirror because it was mounted too high. Id.
He could not transfer to the toilet without assistance because a trash can obstructed
the clear floor space. Id.
He could not use the paper towel dispenser without assistance because it was
mounted too high. Id.
He could not exit the restroom without assistance because the required maneuvering
clearance is not provided on the push side. Id.
He also alleges that there may be further architectural barriers that he likely would have
encountered had they been accessible. Id. at 8. Van Winkle alleges that the removal of the barriers
is easy to accomplish and would be able to be carried out without much difficulty or expense. Id.
at 3. He alleges that he plans on availing himself of the benefits of the Subject Premises’s public
accommodations once they are made compliant with the ADA. Id. at 4.
On June 29, 2017, Van Winkle filed a complaint alleging violations of the ADA (42 U.S.C.
§§ 12101–12103, 12181–12205(a)) and the ADAAG (28 CFR § 36) against Fishtales.1 Dkt. 24 at
1. On February 1, 2018, Fishtales was properly served. Dkt. 17. Scott Harpring, the owner of
Fishtales, responded to the complaint by letter to Van Winkle. Id. at 8. Harpring did not represent
himself to be a licensed attorney. Id. On March 13, 2018, Van Winkle’s counsel, William T.
Leveille II, sent a letter via certified mail to Harpring acknowledging receipt of his letter and giving
notice of an intent to inspect the Subject Premises. Id. at 10. On March 28, 2018, Leveille sent
another letter giving notice that Leveille would be inspecting the Subject Premises on April 10, 2018.
Dkt. 24 at 2, 17. On April 3, 2018, Leveille sent a letter to Fishtales to remind the parties of the
inspection. Id. at 2, 20. Leveille enclosed the court’s scheduling order and right of entry upon land
within the letter. Id. at 2, 21. Fishtales did not respond to any of the letters or notices. Id. at 2–3.
1
Van Winkle also asserts claims against defendant JSPC, LLC that are not at issue in the
instant motion.
2
On April 10, 2018, Van Winkle’s expert witnesses, Charles Childers and Pablo Baez, conducted an
inspection of the Subject Premises with Harpring present. Dkts. 19 at 1–2, 24 at 3. Van Winkle
alleges that Harpring acknowledged receipt of the letters from Leveille and intentionally ignored
them.2 Id. He also alleges that Fishtales still has not filed a responsive pleading or hired
representation. Id.
On June 12, 2018, Van Winkle filed the instant motion for default judgment against
Fishtales. Dkt. 24.
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 55(a), “[w]hen a party against whom judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Under Rule
55(b)(2), a party may apply for the court to enter a default judgment, and the “court may conduct
hearings or make referrals—preserving any federal statutory right to a jury trial—when, to enter or
effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or (D) investigate any other matter.”
Fed. R. Civ. P. 55(b)(2).
A default judgment is a “drastic remedy, not favored by the Federal Rules[,] and resorted to
by courts only in extreme situations.” Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874
F.2d 274, 276 (5th Cir. 1989). “The Federal Rules of Civil Procedure are designed for the just,
speedy, and inexpensive disposition of cases on their merits, not for the termination of litigation by
procedural maneuver.” Id. A default judgment, thus, “must be ‘supported by well-pleaded
2
Van Winkle’s motion cites Exhibit “E.” However, Exhibit “E” is not attached.
3
allegations’ and must have ‘a sufficient basis in the pleadings.’” Wooten v. McDonald Transit
Assocs., Inc., 788 F.3d 490, 498 (5th Cir. 2015) (quoting Nishimatsu Constr. Co. v. Hou. Nat’l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975)). The well-pleaded allegations in the complaint are assumed
to be true, except regarding damages. Nishimatsu, 515 F.2d at 1206; see also United States v. Shipco
Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987). However, “[t]he defendant is not held to admit facts
that are not well-pleaded or to admit conclusions of law.” Nishimatsu, 515 F.2d at 1206.
A court may not enter a default judgment against a minor or an incompetent person unless
the person is represented by a general guardian, conservator, or other like fiduciary who has
appeared. Fed. R. Civ. P. 55(b). Additionally, a court may not enter a default judgment if the
plaintiff does not file an affidavit regarding the defendant’s military status. 50 App. U.S.C. § 521(1).
If the defendant is in the military service, “the court may not enter a judgment until after the court
appoints an attorney to represent the defendant.” Id. § 521(2). A corporate entity is not a service
member under the statute. Davis v. City of Phila., 821 F.3d 484, 488 (3d Cir. 2016). Local Rule 5.5
requires that motions for default judgment “be served on the defendant-respondent by certified mail
(return receipt requested).” S.D. Tex. L.R. 5.5.
III. ANALYSIS
Default judgment is warranted if: (1) Fishtales failed to answer or otherwise defend against
the complaint; and (2) there is sufficient facts in his pleading. The court will consider each issue in
turn.
A.
Failure to Answer
The Fifth Circuit has held that corporations are fictional legal persons who can only be
represented by licensed counsel. Donovan v. Road Rangers Country Junction, Inc., 736 F.2d 1004,
1005 (5th Cir. 1984) (per curiam); Sw. Express Co. v. Interstate Com. Comm’n, 670 F.2d 53, 54–56
4
(5th Cir. 1982); In re K.M.A., Inc., 652 F.2d 398, 399 (5th Cir. 1982). Courts in the Fifth Circuit
have held the term “corporation” includes limited liability companies. See TGP Franchising, LLC
v. Schooley Media Ventures, No. SA-16-CA-546-FB, 2016 U.S. Dist. LEXIS 186524, at *11 (W.D.
Tex. Oct. 4, 2016) (noting that a corporation, including an LLC, may appear in court only through
a licensed attorney who is admitted to practice in court or is granted leave to proceed pro hac vice).
Fishtales’s only response was the letter Harpring sent to Van Winkle. Dkt. 24 at 8. Because
there was never a response to the complaint by a licensed attorney representing Fishtales, it has failed
to answer or otherwise defend against this lawsuit. See Freilich v. Green Energy Res., Inc., 297
F.R.D. 277, 280 (W.D. Tex. 2014) (granting default judgment against a pro se corporation after
striking its answer from a non-attorney representative). Given Fishtales’s failure to answer the
complaint in a timely manner, the court may enter default against it, accept all well-pleaded facts in
Van Winkle’s complaint as true, and award the relief sought by Van Winkle. See Nishimatsu, 515
F.2d at 1206.
B.
Well-Pleaded Facts
The court must determine whether Van Winkle alleged sufficient facts to support a claim
under the ADA. Title III of the ADA states:
No individual shall be discriminated against on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a place of public
accommodation.
42 U.S.C. § 12182(a).
The ADA defines disability, with respect to an individual, as “a physical or mental
impairment that substantially limits one or more major life activities.” Id. § 12108. It also
5
specifically lists restaurants as a public accommodation.
Id. § 12181(7)(A).
Prohibited
discrimination includes denying the plaintiff participation “in or benefit from the goods, services,
facilities, privileges, advantages, or accommodations of an entity.” Id. § 12182(b)(1)(A)(i); 28
C.F.R.§ 36.202(a). Specific prohibited discrimination includes a failure to remove architectural
barriers, and communication barriers that are structural in nature, in existing facilities, where such
removal is readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv).
Readily achievable is defined as “easily accomplishable and able to be carried out without
much difficulty or expense.” Id. § 12181(9). Congress provided factors to be considered in
determining whether an action is "readily achievable." Those factors include:
(A) the nature and cost of the action needed under the [ADA];
(B) the overall financial resources of the facility or facilities involved in the action;
the number of persons employed at such facility; the effect on expenses and
resources, or the impact otherwise of such action upon the operation of the facility;
(C) the overall financial resources of the covered entity; the overall size of the
business of a covered entity with respect to the number of its employees; the number,
type, and location of its facilities; and
(D) the type of operation or operations of the covered entity, including the
composition, structure, and functions of the workforce of such entity; the geographic
separateness, administrative or fiscal relationship of the facility or facilities in
question to the covered entity.
Id.
The Fifth Circuit previously addressed the burden of proof under a Title III reasonable
modification claim 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). The plaintiff meets this burden by
introducing evidence that the requested modification is reasonable in the general sense, that is,
reasonable in the run of cases. Id.
6
In Burrell v. Twin Goose, LLC, the court denied a default judgment because the plaintiff did
not establish an ADA violation. No. 3:16-CV-1079-L, 2017 U.S. Dist. LEXIS 156669, at *3 (N.D.
Tex. Sept. 25, 2017). The court held that the plaintiff’s allegations regarding the architectural
barriers, requested modifications, reasonableness of the requested modifications, and whether the
requested modifications were readily achievable were entirely conclusory and lacking in factual
detail. Id. at 6. Thus, the plaintiff did not satisfy Johnson. See Johnson, 116 F.3d at 1059.
Here, Van Winkle alleges that he is disabled; that Fishtales is the owner, lessee, or operator
of the restaurant known as Fish Tales; and that it discriminated against him on the basis of his
disability due to architectural barriers that were not in compliance with the ADA. Dkt. 1 at 2–3, 5–7.
However, just like in Burrell, Van Winkle’s allegations regarding whether the requested
modifications are readily achievable are completely conclusory and non-factual. See id. at 3. His
expert witnesses conducted an inspection of the Subject Premises on April 10, 2018, but Van Winkle
did not include any of his expert’s findings in his motion for default judgment. Dkt. 24 at 3.
The court must accept all of the plaintiff’s allegations as true. Nishimatsu, 515 F.2d at 1206.
Even so, the court finds that Van Winkle has not pled sufficient facts to state a claim because he fails
to meet his limited burden under Johnson. Dkt. 24 at 3. Thus, Van Winkle’s motion for default
judgment is DENIED.
7
IV. CONCLUSION
Accepting all of Van Winkle’s well-pleaded facts as true, Van Winkle has not pled sufficient
facts entitling him to default judgment. Thus, the motion for default judgment (Dkt. 24) is DENIED
without prejudice. Van Winkle may file an amended motion for default judgment curing the
deficiencies set forth in this order. The amended motion, if any, must be filed within fourteen days
of the date of this order.
Signed at Houston, Texas on August 8, 2018.
___________________________________
Gray H. Miller
United States District Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?