Opinion
1:19-cv-05176-GHW
11-24-2020
KIRKPATRICK B. DUNBAR, Plaintiff, v. BUDDHA BODAI TWO KOSHER VEGETARIAN RESTAURANT, INC. and BAK LEE TAT INTERNATIONAL, INC., Defendants.
MEMORANDUM OPINION & ORDER
:
The Americans with Disabilities Act (the "ADA") is a bulwark against discrimination on the basis of disability. Under Title III of the ADA, which governs public accommodations, discrimination includes the "failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable." 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iv). This case arises from Kirkpatrick B. Dunbar's failed attempt to visit a vegan restaurant in Chinatown, Manhattan, where physical barriers prevented him from entering the restaurant in his wheelchair in violation of the ADA. Mr. Dunbar requests the entry of default judgment against the operator and landlord of that property and the issuance of a permanent injunction to "remove the physical barriers to access and alter the subject Facility and Property." Judge Netburn has recommended that the Court deny Mr. Dunbar's request for the entry of default judgment with respect to certain violations at the restaurant because Mr. Dunbar failed to provide sufficiently specific details about the alleged barriers. Mr. Dunbar objects to this recommendation, and the Court agrees with him. Save for a pair of allegations regarding the positioning of a toilet paper dispenser and the hardware used for the restroom doors, Mr. Dunbar's statements, taken as true, provided enough information for the Court to determine that the restaurant did not comply with the guidelines set forth by the ADA.
However, the Court cannot determine at this time whether the scope of the permanent injunction requested by Mr. Dunbar, requiring that the facility remedy all violations of the ADA, is consistent with the ADA's requirement that injunctive relief ordered pursuant to the statute be "readily achievable." Therefore, the Court grants Mr. Dunbar's motion for default judgment in part, and requests more information to craft the scope of the appropriate injunctive relief.
I. BACKGROUND
Mr. Dunbar is one of millions of Americans who use a wheelchair. Complaint ("Compl."), Dkt. No. 1, ¶ 3. On May 8, 2019, Mr. Dunbar attempted to visit Bodhi Kosher Vegetarian Restaurant. Id. ¶ 4. The restaurant is located at 77 Mulberry Street in New York City's Chinatown neighborhood. Id. ¶ 3. Mr. Dunbar was looking forward to trying the restaurant's offerings that day and becoming a repeat customer. Id. ¶ 4. Instead, he encountered a series of physical barriers that prevented him from entering the restaurant and sampling their surely savory, meatless dishes. See id.
On June 3, 2019, Mr. Dunbar brought this action against defendants Buddha Bodai Two Kosher Vegetarian Restaurant, Inc. ("Buddha Bodai"), the operator of the restaurant, and Bak Lee Tat International, Inc. ("Bak Lee"), the owner of the property and Buddha Bodai's landlord (together, "Defendants"). Id. ¶¶ 7-8. He alleges that the restaurant does not comply with the ADA Accessibility Guidelines (the "ADAAG"), which establish design guidelines for public accommodations such as restaurants. Id. ¶ 19. The violations alleged by Mr. Dunbar can be described as fitting into six categories:
(1) compliance problems at the entrance in violation of ADAAG §§ 303.4, 404.2.4.4, 404.2.3, 206.2.1, and 206.4.5; (2) failure to post signage indicating the nearest compliant entrance and restroom in violation of ADAAG §§ 216.6, 216.8, and 703; (3) failure to provide an access route from site arrival points such as the public streets and sidewalks to an accessible entrance in violation of ADAAG § 206.2.1; (4) compliance issues in the interior of the restaurant due to placement of chairs and tables in violation of ADAAG § 403.5.1; (5) placement of the restroom on the lower floor and accessible only by stairs in violation of ADAAG § 206.2.3; and (6) compliance issues inside the restroom in violation of ADAAG §§ 404.2.7, 308.2.1, 604.5.2, 604.7, 606.2, and 603.3 (the "ADA violations").Report and Recommendation ("R&R"), Dkt. No. 18, at 5; Pl.'s Partial Objs. to Magistrate Judge's Report and Recommendations (the "Objections"), Dkt. No. 19, at 8.
Mr. Dunbar asserts three causes of action: violations of Title III of the ADA, the New York City Human Rights Law ("NYCHRL"), and the New York State Human Rights Law ("NYSHRL"). Compl. at 1. He seeks $500.00 in damages, as well as attorneys' fees, costs, and expenses. Id. at 13. Mr. Dunbar also requests the entry of a permanent injunction
enjoining Defendants from continuing their discriminatory practices[] [and] ordering Defendants . . . to remove the physical barriers to access and alter the subject Facility and Property to make it readily accessible to and useable by individuals with disabilities to the extent required by the ADA, including but not limited to providing the Court with a remedy plan within the next 60 (sixty) days[.]Pl.'s Proposed Findings of Fact and Conclusions of Law ("Proposed Findings"), Dkt. No. 14, at 8; see also Compl. at 13.
Because Defendants have failed to appear or otherwise defend themselves in this action, Mr. Dunbar has requested that the Court enter default judgment in this action. Both Defendants were served through the New York Secretary of State on June 7, 2019. Dkt. No. 5. After Defendants failed to appear, Mr. Dunbar requested a certificate of default, which was issued by the Clerk of Court. Dkt. Nos. 9-11. Under the Court's September 12, 2019 order, dispositive motions were referred to Magistrate Judge Netburn. Dkt. No. 12. On November 25, 2019, Judge Netburn ordered Mr. Dunbar to propose findings of fact and conclusions of law describing all claimed damages and any other monetary relief. Dkt. No. 13. On January 6, 2020, Mr. Dunbar submitted those materials and moved for default judgment against both Defendants. See Dkt. Nos. 14-14-6. Defendants were served by U.S. Mail with copies of the motion for default judgment and its supporting papers. Dkt. No. 16.
On June 10, 2020, Judge Netburn issued her Report and Recommendation (the "R&R") on Mr. Dunbar's request for the entry of default judgment, in which she recommended that the Court grant Mr. Dunbar's motion in part. See R&R at 11. Judge Netburn recommended that the Court enter default judgment for the alleged violations related to the lack of proper signage and the lack of an accessible route to the restroom. Id. at 6. However, she recommended that the Court decline to enter default judgment as to all of the other alleged violations because Mr. Dunbar had failed to provide "specifications," such as the actual measurements, of the restaurant's features that allegedly did not comply with the ADAAG. Id.
On June 18, 2020, Mr. Dunbar filed a timely partial objection to Judge Netburn's R&R pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See Objections at 1. Mr. Dunbar objects to Judge Netburn's recommendation that the Court deny his request for the entry of default judgment with respect to the barriers other than those relating to the lack of proper signage and the lack of an access route connecting the main floor with the restroom on the lower level. Id. He argues that Judge Netburn's recommendation "is simply not practical" and creates an overly burdensome standard for plaintiffs seeking to bring ADA claims. Objections at 1-2, 6.
Defendants were served with copies of Mr. Dunbar's Objections by U.S. Mail. Dkt. No. 20. To date, Defendants have not appeared in this case.
II. STANDARD OF REVIEW
District courts may "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "Where parties receive clear notice of the consequences," failing to timely "object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision." Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)). "The district court may adopt those portions of the report to which no specific, written objection is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." Minto v. Decker, 108 F. Supp. 3d 189, 192 (S.D.N.Y. 2015) (internal quotation marks omitted) (quoting Adams v. N.Y. State Dep't of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012).
A district court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1). "A party that objects to a report and recommendation must point out the specific portions of the report and recommendation to which they [sic] object." Herring v. Capra, No. 13-CV-8946 (CS)(LMS), 2016 WL 7378976, at *1 (S.D.N.Y. Dec. 20, 2016) (citation omitted).
Mr. Dunbar objects to Judge Netburn's recommendation that the Court deny his motion for default judgment with respect to certain barriers because she determined that they were supported by conclusory allegations insufficient to establish liability. See Objections at 1-2. Therefore, the Court reviews those issues de novo. The Court additionally reviews Judge Netburn's recommendation that the Court enter default judgment with respect to the barriers related to the lack of proper signage and lack of an access route connecting the main floor with the restroom on the lower level for clear error. Mr. Dunbar has not specifically objected to Judge Netburn's recommendations as to standing, the NYCHRL and NYSHRL claims, or the calculation of damages and attorneys' fees. Nonetheless, the Court has reviewed those sections for clear error and finds none.
The Court notes that Mr. Dunbar submitted photos of the alleged ADAAG violations with the Objections. See Ex. 3 to Objections, Dkt. No. 19-3. Those photos, which he presumably seeks to use to substantiate the allegations Judge Netburn said were insufficient, were not before Judge Netburn at the time of her decision. The Court declines to consider arguments or evidence raised for the first time here. See United States v. Vega, 386 F. Supp. 2d 161, 163 (W.D.N.Y. 2005) (holding that even on de novo review, "the Court generally does not consider arguments or evidence which could have been, but were not, presented to the Magistrate Judge" (citation omitted)).
III. DISCUSSION
a. Legal Standard for Default Judgment
"When a party against whom a 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). In evaluating a motion for default judgment, the Court accepts the factual allegations in the complaint as true, except those relating to damages, and draws all reasonable inferences in Mr. Dunbar's favor. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009). Nevertheless, the Court is required to determine whether Mr. Dunbar's allegations establish liability as a matter of law, see id., and it "has discretion under Rule 55(b)(2) once a default is determined to require proof of necessary facts and need not agree that the alleged facts constitute a valid cause of action." Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (citation omitted).
b. Americans with Disabilities Act
"Congress enacted the ADA in 1990 to remedy widespread discrimination" against individuals with disabilities. PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). "To effectuate its sweeping purpose, the ADA forbids discrimination against [individuals with disabilities] in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III)." Id. at 675 (citations omitted). Mr. Dunbar has brought this action under Title III, which provides that "[n]o 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." 42 U.S.C. § 12182(a).
i. Liability
Mr. Dunbar has adequately alleged that Defendants have violated the ADA because, notwithstanding the fact that he did not provide the actual measurements of each alleged barrier, the information Mr. Dunbar provided, when taken as true, establishes that certain features at the restaurant do not comply with the ADAAG. "To establish an ADA claim, the plaintiff must prove '(1) that [he] is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against [him] by denying [him] a full and equal opportunity to enjoy the services defendants provide.'" Range v. 230 W. 41st St. LLC, No. 17-CV-149 (LAP), 2020 WL 3034800, at *3 (S.D.N.Y. June 5, 2020) (citing Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008)). Discrimination includes "a failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily achievable" and "where an entity can demonstrate that the removal of a barrier . . . is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv)-(v). "Readily achievable" is defined as "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9). Here, Mr. Dunbar only disputes Judge Netburn's recommendation that the Court find that he did not adequately plead the third prong of his ADA claims.
For most of the allegations here, the Court can determine that Defendants did not comply with the ADAAG, notwithstanding the lack of the precise measurements that Judge Netburn's R&R required. Judge Netburn recommended that the Court find that Mr. Dunbar had established "the existence of barriers with respect to the lack of proper signage and the lack of an accessible route connecting the main floor with the lower floor restroom." R&R at 8. At the same time, she concluded that his allegations were insufficient with respect to other alleged violations, because Mr. Dunbar did not "provide the specifications of the [violations at] the entrance, doorway, walking surfaces, or restroom features." Id. at 6. For example, Judge Netburn highlighted the fact that Mr. Dunbar failed to provide the "actual" height or width of the allegedly noncompliant doorway or coatrack, and that Mr. Dunbar's allegation related to the doorway barrier was insufficient because he said that it was "not wide enough." Id. (citations omitted).
Judge Netburn made this recommendation even though she determined that "Plaintiff has . . . adequately pleaded all three prongs of a Title III claim and sufficiently established Defendants' liability" and "Plaintiff adequately allege[d] that Defendants discriminated against him by denying him a full and equal opportunity to enjoy their services." R&R at 4-5 (citations omitted). However, based on Judge Netburn's recommendation that the Court deny Mr. Dunbar's request for the entry of default judgment as to some of the barriers because the allegations were inadequately pleaded, and the analysis supporting that conclusion, the Court interprets her recommendation to be that Mr. Dunbar failed to establish that Defendants discriminated against him as to those barriers, as required by the third prong.
But the law is well settled in this Circuit that "[p]laintiffs can establish discrimination by showing violations of the accessibility guidelines set forth in the ADAAG." Cox v. Anjin LLC, No. 19-CV-4315 (GBD)(SLC), 2020 WL 5027864, at *6 (S.D.N.Y. July 24, 2020) (citing Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191, 199 (S.D.N.Y. 2016)), report and recommendation adopted, No. 19-CV-4315 (GBD)(SLC), 2020 WL 5018255 (S.D.N.Y. Aug. 25, 2020); see also Shariff v. Beach 90th St. Realty Corp., No. 11-CV-2551 (ENV)(LB), 2013 WL 6835157, at *4 (E.D.N.Y. Dec. 20, 2013). And, while lacking precise measurements, Mr. Dunbar's allegations were more than merely conclusory. Mr. Dunbar alleged that the doorway's "clear width is below 32 inches" in violation of the ADAAG. Compl. ¶ 19(h). It makes little difference if the width was 31 or 30 inches, given that the complaint establishes that it was below the required threshold. As to the barriers at the entrance, which Judge Netburn said "lack[ed] sufficient detail[,]" R&R at 6, Mr. Dunbar alleged that there were "two steps that create an excessive vertical rise at the [restaurant] entrance" that exceeded the one-half inch maximum change in level set forth in the ADAAG. Compl. ¶ 19(a). This allegation is more than merely conclusory. Here too, it matters little if the excess was three-fourths of an inch or a full inch, so long as it was greater than the one-half inch maximum established by the guidelines; more specific detail is not required to adequately plead this violation. See Shalto v. Bay of Bengal Kabob Corp., No. 12-CV-920 (KAM)(VMS), 2013 WL 867429, at *7 (E.D.N.Y. Feb. 6, 2013) ("Plaintiff does not elaborate [on] the specific problems he perceives with Defendant's bathroom . . . but the Court accepts as true, as it must, that violations of ADAAG §§ 4.13.9, 4.16, and 4.17 exist."), report and recommendation adopted as modified, No. 12-CV-920 (KAM)(VMS), 2013 WL 867420 (E.D.N.Y. Mar. 7, 2013). And finally, as Mr. Dunbar points out, some of the guidelines referenced in the complaint do not require any particular measurements, so providing further detail would not contribute to establishing that Defendants discriminated against him. See Objections at 4 ("[T]he accessible entrance of the Property lacks at least one accessible route provided within the site to the public streets and sidewalks in violation of Section 206.2.1 of the 2010 ADAAG standards. Here, there is no measurement to be taken. The allegation specifically states there is no access route into the accessible entrance.").
To reach her conclusion, Judge Netburn reasonably relied on a case decided by Judge Oetken of this District, which held that "[m]erely restating the contents of the ADA Accessibility Guidelines is conclusory and not sufficient to establish liability." R&R at 6; see Rogers v. Subotic LLC, No. 18-CV-1997 (JPO), 2018 WL 3918181, at *2 (S.D.N.Y. Aug. 16, 2018). The Court agrees. For many sections of the ADAAG, a mere recitation of the text would be inadequate to demonstrate a violation existed. For example, Mr. Dunbar's allegation that "[t]he toilet paper dispenser in the accessible toilet is not positioned properly and violates Section 604.7 of the 2010 ADAAG standards" fails to provide the Court with any information whatsoever regarding the dispenser's position, or why it is improper and in violation of the ADAAG. See Compl. ¶ 19 § Restrooms(e). Mr. Dunbar's allegation that "[t]he restrooms lack proper door hardware in violation of Section 404.2.7 of the 2010 ADAAG standards" similarly lacks sufficient detail. Id. ¶ 19 § Restrooms(b). Therefore, because the Court cannot determine that Defendants are liable for improperly positioning the toilet paper dispenser or failing to install ADA-compliant door hardware, the Court affirms Judge Netburn's decision and overrules Mr. Dunbar's objection as to those allegations.
But as described above, Mr. Dunbar's remaining allegations survive because, given the nature of the violations in this instance, the allegations are not merely conclusory. The holding in Rogers supports the Court's conclusion regarding the adequacy of the pleadings here. As in this case, Rogers addressed a motion for default judgment brought under Title III of the ADA. It is true that the court in Rogers denied the request for default judgment as to allegations that "contain[ed] no specific details, such as the actual height of the presently available eating surfaces," as Judge Netburn recommended the Court do here. Rogers, 2018 WL 3918181, at *2. However, after reviewing the complaint in Rogers, filed by the same lawyer who represents Mr. Dunbar in this case, the Court is led to a different conclusion than the one reached by Judge Netburn. The Rogers court concluded that allegations identical to those Judge Netburn described as inadequately pleaded here were sufficient to establish discrimination under Title III of the ADA. Compare Compl. ¶¶ 19(b), (d), and (f), with Rogers, Case No. 18-CV-1997, March 6, 2018, ECF No. 1 ¶¶ 19(b)-(d). At least one other court in this District has also found that allegations identical to Mr. Dunbar's here were sufficient to establish that the defendant discriminated against the plaintiff in violation of the ADA. See Cox, 2020 WL 5027864, at *2 (also brought by the same plaintiff's counsel as this case). Here, Mr. Dunbar's allegations were not conclusory—they provided enough detail to support the conclusion that, through their noncompliance with the ADAAG, Defendants discriminated against Mr. Dunbar. See id. at *6. Finding that Defendants are liable for all of the ADA violations alleged in the complaint other than the allegedly non-compliant toilet paper dispenser and restroom door hardware, the Court will next discuss the appropriate relief for those violations.
ii. Injunctive Relief
With the information before it, the Court cannot determine whether the permanent injunction requested by Mr. Dunbar directing Defendants to "remove the physical barriers to access and alter the subject Facility and Property" is "readily achievable" as required by the ADA. See Compl. at 13. The Court will require additional information before granting Mr. Dunbar relief in the broad strokes that he has painted.
The Court has sustained Mr. Dunbar's objection to Judge Netburn's recommendation as to the sufficiency of the allegations in the complaint, other than Mr. Dunbar's allegations describing the position of the toilet paper dispenser and the hardware on the restroom doors. Because Judge Netburn's recommendations on injunctive relief were rooted in her recommendations on liability, the Court will review those as well. See R&R at 7-8. Furthermore, in his Objections, Mr. Dunbar requests that the Court review Judge Netburn's recommendations on injunctive relief. See Objections at 11. Because Defendants are liable for the remaining violations, and Mr. Dunbar requests a single permanent injunction, the Court will analyze Mr. Dunbar's request for injunctive relief as to those violations together.
On default judgment, the Court "deems all the well-pleaded allegations in the pleadings [as] admitted[,]" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997) (quotation omitted), other than those relating to damages. Rolls-Royce PLC v. Rolls-Royce USA, Inc., 688 F. Supp. 2d 150, 153 (E.D.N.Y. 2010) (the Court has the "responsibility to ensure that the factual allegations, accepted as true, provide a proper basis for liability and relief." (citing Au Bon Pain, 653 F.2d at 65)); see also Shariff, 2013 WL 6835157, at *5 & n.4 (relying on plaintiff's factual allegations, taken as true, to grant injunctive relief on a motion for a default judgment); Sullivan v. Marble Unique Corp., No. 10-CV-3582 (NGG)(LB), 2011 WL 5401987, at *14 (E.D.N.Y. Aug. 30, 2011) (same), report and recommendation adopted, No. 10-CV-3582 (NGG)(LB), 2011 WL 5402898 (E.D.N.Y. Nov. 4, 2011). To enter default judgment, the Court need not rely exclusively on the allegations pleaded in the complaint. "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. Pro. 55(b)(2).
The Court "may issue an injunction on a motion for default judgment provided that the moving party shows that (1) it is entitled to injunctive relief under the applicable statute and (2) it meets the prerequisites for the issuance of an injunction." WowWee Grp. Ltd. v. Haoqin, No. 17-CV-9893, 2019 WL 1316106, at *5 (S.D.N.Y. Mar. 22, 2019) (citation omitted). Here, the first prong is satisfied because the ADA explicitly provides a private right of action for injunctive relief and Mr. Dunbar has established that Defendants have discriminated against him in violation of the ADA. 42 U.S.C. § 12188(a) (injured persons can apply for injunctive relief in causes of action brought for violations of 42 U.S.C. § 12182(b)(2)(A)(iv)); see Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 86 (2d Cir. 2004); Shariff, 2013 WL 6835157, at *5. Because the Court has determined that Defendants are liable for their failure to comply with the ADAAG, Mr. Dunbar is entitled to some form of relief permitted by the ADA. The ADA requires that where injunctive relief is granted for violations of section 12182(b)(2)(A)(iv), "injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by [Title III]." 42 U.S.C. § 12188(a)(2).
The "maximum relief available with respect to the removal of architectural . . . barriers under Title III [of the ADA] is limited to those steps that are 'readily achievable' by the covered entity." Harty v. Spring Valley Marketplace LLC, No. 15-CV-8190 (NSR), 2017 WL 108062, at *12 (S.D.N.Y. Jan. 9, 2017) (citing 42 U.S.C. §§ 12182(b)(2)(A)(iv)-(v), 12181(9)). As stated, Mr. Dunbar is entitled to some form of injunctive relief under the statute. Mr. Dunbar has asked that the Court grant his request for a permanent injunction and direct Defendants to "remove the physical barriers to access and alter the subject Facility and Property[,]" and require Defendants to provide a remedy plan to the Court within 60 days. Compl. at 13; Proposed Findings at 8. However, this order of operations puts the cart before the horse because the Court cannot determine whether Mr. Dunbar's proposed injunction, which would require that the restaurant fully correct the asserted deficiencies, would compel Defendants to implement changes that were not readily achievable. If it would, the proposed injunction would exceed the scope of injunctive relief permitted under the statute and would ask the Court to enforce an order that may not be capable of being enforced.
To determine whether alterations are readily achievable, the Court considers factors such as
(A) the nature and cost of the action needed under this chapter;42 U.S.C. § 12181(9). Quoting the statute verbatim, Mr. Dunbar proffers only that the removal and alteration of the violations set forth in the complaint are "readily achievable and can be accomplished and carried out without much difficulty or expense" because "the nature and cost of the modifications are relatively low and the Defendants have the financial resources to make the necessary modifications." Compl. ¶¶ 21, 25. The Court has accepted these allegations for purposes of establishing liability. But to craft a remedy, as with assessing damages, the Court does not rely on thinly pleaded allegations alone. See Shariff v. Alsaydi, No. 11-CV-6377 (FB)(SMG), 2013 WL 4432218, at *3 (E.D.N.Y. Aug. 15, 2013) ("Although the allegations of a complaint pertaining to liability are deemed admitted upon entry of default judgment, allegations relating to relief and damages are not . . . . A court must ensure that there is a basis for the relief sought by a plaintiff before entering a judgment for what was demanded." (citations omitted)). Instead, the Court will seek sufficient facts to support the requested remedy. See Fed. R. Civ. P. 55(b)(2).
(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.
The Court has reviewed Judge Netburn's findings regarding the sufficiency of these allegations to plead liability only for clear error because they were not the subject of objections.
The complaint's recitation of the statutory language alone does little to assist the Court in its evaluation of whether the requested relief is "readily achievable." The Court lacks basic information, such as the nature of the proposed alterations, their cost, regulatory and architectural constraints, and Defendants' resources. Certainly, for some of the violations, it is relatively clear what will be required of Defendants to address the violations. For example, the Court expects that the installation of "signage identified by the International Symbol of Accessibility that indicates the location of the nearest entrance" will be readily achievable and of relatively little burden to Defendants.
However, the Court cannot determine from this record that remedying all of the asserted violations will be readily achievable. For example, Defendants lack "an accessible route connecting the accessible elements and features of the main floor with the lower floor in violation of Section 206.2.3 of the 2010 ADAAG standards" because "the restroom is located in the lower floor and the only access is via stairs." Compl. ¶ 19(j). This is a violation that should be remedied. But, put simply, for purposes of crafting a remedy, the Court does not accept at face value Mr. Dunbar's allegations that "the nature and cost of the modifications are relatively low and the Defendants have the financial resources to make the necessary modifications." Id. ¶ 21. The cost of constructing an accessible route to a downstairs bathroom in Manhattan may not be "relatively low." And a vegan Chinese restaurant operating in the middle of the COVID-19 pandemic may not have the financial resources to make the necessary modifications. Mr. Dunbar's thin allegations alone do not permit the Court to determine how the violation can be rectified by alterations that are "easily accomplishable and able to be carried out without much difficulty or expense" with respect to all of the violations alleged in this case. 42 U.S.C. § 12181(9). Further evidence or investigation regarding the relevant facts is necessary in order to craft the appropriate injunctive relief.
Additional information will also help the Court balance the hardships faced by the parties, as required to impose injunctive relief. To determine whether the prerequisites for the issuance of an injunction are met, the Court considers well-established, generally applicable principles of equitable relief. When a plaintiff has succeeded on the merits, as Mr. Dunbar has here, the Court may enter a permanent injunction if the plaintiff satisfies the four-factor test described by the Supreme Court in eBay Inc. v. MercExchange, L.L.C.: "(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." 547 U.S. 388, 391 (2006) (citations omitted).
Although eBay was a case arising under the Patent Act, the Supreme Court provided no indication that these general equitable principles should not also be applied in other contexts, absent clear statutory authority. eBay, 547 U.S. at 391 (2006) ("As this Court has long recognized, 'a major departure from the long tradition of equity practice should not be lightly implied.'" (quotation omitted)); see Salinger v. Colting, 607 F.3d 68, 78 & n.7 (2d Cir. 2010) (observing that "eBay strongly indicates that the traditional principles of equity it employed are the presumptive standard for injunctions in any context" and "we see no reason that eBay would not apply with equal force to an injunction in any type of case" (emphasis added in first quote and included in original in second quote)); see also Thomas v. West, No. 14-CV-4459 (LTS), 2018 WL 3768525, at *5 (S.D.N.Y. Aug. 8, 2018) (applying the eBay factors to a request for a permanent injunction under the ADA). Although the ADA provides a statutory basis for Mr. Dunbar to apply for a permanent injunction, that authorization "does not automatically release a plaintiff from the burdens of eBay, nor can it strip the Court of its obligations in equity." Koch v. Greenberg, 14 F. Supp. 3d 247, 283-84 (S.D.N.Y. 2014) (citation omitted) (discussing the statutory right for citizens to bring a cause of action and obtain injunctive relief to enforce New York's General Business Law), aff'd, 626 F. App'x 335 (2d Cir. 2015).
In employing this approach, other courts have recognized its consistency with Supreme Court precedent "strongly disfavor[ing]" a presumption of irreparable harm and, consequently, the automatic legitimacy of injunctive relief upon a finding of liability . . . . In light of the Supreme Court's teachings on presumptions of equitable relief, it cannot be that a prevailing plaintiff under the [statute] will automatically receive a permanent injunction, unlimited in scope so long as that plaintiff had the foresight to pray for injunctive relief in its original complaint.Id. (citing Kane v. Chobani, Inc., No. 12-CV-02425, 2013 WL 3776172, at *7 (N.D. Cal. July 15, 2013) and Verizon Directories Corp. v. Yellow Book USA, Inc., 338 F. Supp. 2d 422, 429-30 (E.D.N.Y. 2004)). Here, the plain language of the ADA states that private citizens subjected to discrimination on the basis of disability may institute "an application for a permanent . . . injunction." 42 U.S.C. §§ 12188(a); 2000a-3. The Court cannot conclude that the four-factor test summarized in eBay does not apply to actions brought under the ADA without specific direction from Congress to the contrary.
Here, the first, second, and fourth eBay factors are satisfied. Mr. Dunbar has suffered irreparable harm because he was excluded from participating in the full and equal enjoyment of the restaurant. Remedies at law are unavailable to Mr. Dunbar under the ADA, and therefore they cannot compensate for his injury. The public has an interest in enforcing compliance with the ADA, which furthers the policy goal of a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). However, an evaluation of the balance of hardships would be more accurate with the benefit of additional information about the scope and cost of the relief to be ordered.
A court order must be more "specific than a simple command that the defendant obey the law." Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 51 (2d Cir. 1996) (citations omitted); see Fed. R. Civ. P. 65(d) (providing that "[e]very order granting an injunction" must "state its terms specifically" and "describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required."). "To comply with the specificity and clarity requirements, an injunction must . . . apprise those within its scope of the conduct that is being proscribed." S.C. Johnson & Son, Inc. v. Colorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001) (quotation marks and citation omitted). The language of Mr. Dunbar's requested injunction seeks to "enjoin[] Defendants from continuing their discriminatory practices" and remove the barriers to bring the facility in compliance with the ADA and ADAAG. Proposed Findings at 8; Compl. at 13. Without more, this order would simply direct Defendants to "obey the law." See Peregrine, 89 F.3d at 51.
The Court recognizes that the path of least resistance would be to enter the requested injunction notwithstanding its breadth and the lack of information regarding whether the requested relief is capable of being implemented. But the entry of an order imposing injunctive relief presumes that the Court will be able to enforce it. A court has broad "power to order whatever relief is necessary to carry out its Orders." Gallagher v. New York State Bd. of Elections, No. 20-CV-5504, 2020 WL 4578934, at *2 (S.D.N.Y. Aug. 7, 2020) (citing Root v. Woolworth, 150 U.S. 401, 410-411 (1983) ("It is well settled that a court of equity has jurisdiction to carry into effect its own orders, decrees and judgments.")); see also id. ("A court's powers to enforce its own injunction by issuing additional orders is broad . . . particularly where the enjoined party has not fully complied with the court's earlier orders" (quoting Nat'l Law Ctr. v. U.S. Veterans Admin., 98 F. Supp. 2d 25, 26-27 (D.D.C. 2000)). The Court wishes to enter a precise order requiring that Defendants remedy their violations to the fullest extent permitted by law, and expects to issue an order that can be enforced. Therefore, rather than ordering the broad, imprecise injunctive relief requested by Mr. Dunbar, the Court will first request more information to structure the scope of the order. The Court seeks additional information to ensure that the injunction that it enters requires readily achievable alterations, so that it can effectively enforce them.
The approach that the Court adopts here is not applicable in all ADA cases. Given the nature of the alleged violations, whether a remedy is readily achievable may be readily apparent and a court may comfortably rely on bare bones allegations alone to conclude that the injunctive relief requested is appropriate. However, in this case, the violations and the scope of the remedy requested—in particular, the requested construction of an accessible route connecting the main level to the lower-level restroom—behoove the Court to request additional facts before entering a permanent injunction.
IV. CONCLUSION
For the reasons stated, the Court adopts Judge Netburn's recommendation with respect to Mr. Dunbar's allegations regarding the positioning of the toilet paper dispenser and the door hardware, and denies entry of default judgment with respect to those inadequately pleaded violations. For the remaining violations, Mr. Dunbar's application for default judgment establishes Defendants' liability, but the Court requests further information before granting Mr. Dunbar's request for injunctive relief. The Court will schedule a conference to solicit views from Mr. Dunbar's counsel about the best approach to structuring any requested injunctive relief. The Court defers entry of injunctive relief until after that process is complete.
Mr. Dunbar expressly stated that he "does not have any objections to Magistrate Judge's [sic] findings concerning damages and fees." Objections at 11. Having reviewed Judge Netburn's recommendation for clear error and finding none, the Court awards Mr. Dunbar the recommended amount: $500.00, plus $5,362.00 in attorneys' fees and $581.00 in costs. The Court orders Defendants to pay Mr. Dunbar the total amount of $6,443.00, for which they shall be jointly and severally liable.
The Clerk of Court is directed to mail this order by first class and certified mail to the Defendants.
SO ORDERED. Dated: November 24, 2020
/s/_________
GREGORY H. WOODS
United States District Judge