Opinion
6:22-CV-00398-ADA-JCM
06-22-2023
RYAN LAMBERT, Plaintiff, v. VIRGINIA BRISENO, et al, Defendant.
THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), FED. R. CIV. P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Plaintiff's Motion for Default Judgment (ECF No. 17). For the following reasons, the Court recommends Plaintiff's Motion for Default Judgment be DENIED and that Plaintiff's claims be dismissed for want of prosecution.
I. BACKGROUND
Plaintiff Ryan Lambert files this Motion for Default Judgment against Defendants Virginia Briseno and Briseno Rentals LLC. Plaintiff sued on April 19, 2022, alleging violations of the Americans with Disabilities Act. Pl.'s Compl. (ECF No. 1). On the same day, summons was issued. ECF No. 2; ECF No. 3.
Plaintiff filed this lawsuit seeking injunctive relief for Defendant's alleged violations of the ADA. Pl.'s Compl. at 5. Plaintiff alleges that Defendant violated the ADA because “there is no van accessible parking”; “the paint delineating the accessible parking spaces and access aisles is not being maintained so that it clearly marks the accessible parking location”; “no visible upright signage (displaying the International Symbol of Accessibility) designating any parking spaces as accessible”; the curb ramp to the accessible entrance has a run which exceeds the maximum slope requirement; the access aisle has a curb ramp projecting into it and/or has surfaces which are otherwise not level in all directions; “Defendants have a practice of failing to maintain the accessible features of the facility, creating barriers to access for the Plaintiff”; and “Defendants have failed to modify its discriminatory practices to ensure that ... the Subject Property remains readily accessible to and usable by disabled individuals”; among others. Id. at 8-12. Plaintiff requests injunctive relief requiring Defendant to make structural changes to the facility, implement new policies, and fulfill its duties under the ADA. Id. at 16-17. Finally, Plaintiff requests damages for reasonable attorney's fees. Id. at 17.
The Clerk of the Court issued summons as to Defendants on April 19, 2022. ECF No. 2; ECF No. 3. The undersigned issued an Order to Show Cause, requiring Plaintiff to show cause why his case should not be dismissed under Federal Rule of Civil Procedure 4(m) for failing to serve Defendant within Rule 4(m)'s period. ECF No. 6. Plaintiff filed a return of summons showing that Virginia Briseno was served on September 26, 2022, and Briseno Rentals LLC was served by its registered agent on September 24, 2022. ECF No. 10; ECF No. 11. Plaintiff then filed a Motion for Clerk's Entry of Default against Defendant on December 30, 2022. ECF No. 12. The Clerk entered default on January 13, 2023. ECF No. 13. When Plaintiff had not filed a Motion for Default Judgment in the intervening three months, the Court ordered him to show cause by April 13, 2023, why his case should not be dismissed for want of prosecution. ECF No. 14. Plaintiff responded on April 17, 2023, informing the Court of personal issues encountered by Plaintiff's Counsel and requesting additional time to file the Motion. ECF No. 15. Over a month later, Plaintiff still had not filed his Motion for Default Judgment, so the Court, for the third time, ordered Plaintiff to show cause as to why his claim should not be dismissed for want of prosecution. ECF No. 16. Plaintiff finally filed his Motion for Default Judgment on May 30, 2023. ECF No. 17. Defendants have not responded.
II. RELEVANT LAW
Default may be entered against a party when it fails to answer or otherwise defend a suit. FED. R. CIV. P. 55. The following three steps must be followed to obtain a default judgment: (1) default by the defendant; (2) entry of default by the Clerk; and (3) entry of default judgment by the court. N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). To enter default judgment, courts typically determine whether default judgment is appropriate by considering the Lindsey v. Prive Corp., 161 F.3d 886 (5th Cir. 1998) factors and whether the pleadings have a sufficient basis for judgment. Nautilus Ins. Co. v. A Best American Roofing, LLC, EP-18-CV-320-PRM, 2019 WL 1473140, at *2 (W.D. Tex. Apr. 3, 2019) (citing Lindsey, 161 F.3d at 893 and Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)); Yeti Coolers, LLC v. Zhejiang Zhuosheng Indus. & Trade Co., Ltd., 1:17-CV-821-RP, 2019 WL 2568748, at *2 (W.D. Tex. June 21, 2019).
Plaintiff's well-pleaded factual allegations are taken as true after default, and default functions as an admission of those allegations. Jackson v. FIE Corp., 302 F.3d 515, 524-25 (5th Cir. 2002). Failure to answer or otherwise defend is admission of liability but not agreement with proposed damages. Id. An evidentiary hearing is not necessary to determine damages if damages are liquidated or mathematically calculable. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979).
III. ANALYSIS
Plaintiff seeks injunctive relief relating to alleged violations of the ADA. In his Motion for Default Judgment, Plaintiff requests that the Defendants be ordered to fully remedy all barriers to entry as defined by the ADA that are present at the property that is the subject of this litigation as alleged in Plaintiff's Complaint. Pl.'s Mot. Def. J. at 3. The Court must determine first whether default judgment is appropriate, and second what relief, if any, should be awarded.
First, the Court must determine whether default judgment may be entered. To obtain default judgment, the following must occur: (1) default by the defendants; (2) entry of default by the Clerk; and (3) entry of default judgment by the court. N.Y. Life Ins. Co., 84 F.3d at 141. Defendants defaulted by failing to answer or otherwise defend this suit. FED. R. CIV. P. 55. Service was properly executed on Defendants, yet they has not appeared, answered, or otherwise defended this suit. Pl.'s Mot. for Clerk's Entry of Default. The Court Clerk entered default against Defendants on January 13, 2023. Clerk's Entry Default. Therefore, default judgment may be entered by the Court, and the Court must now determine whether default judgment is appropriate.
Under Lindsey, the Court must consider the following:
whether material issues of fact are at issue whether there has been substantial prejudice, whether the grounds for default are clearly established, whether the default was caused by a good faith mistake or excusable neglect, the harshness of a default judgment, and whether the court would think itself obliged to set aside the default on the defendant's motion.Lindsey, 161 F.3d at 893.
To assert a viable claim for an ADA accommodation case, a plaintiff must establish three things: (1) he has a disability; (2) the place that the defendant owns, leases, or operates is a place of public accommodation; and (3) he was denied the full and equal enjoyment because of his disability. Deutsh v. Wehbe, No. 1:15-CV-702-RP, 2015 WL 6830920, at *1 (W.D. Tex. Nov. 6, 2015) (citations omitted). Discrimination under the ADA includes “a failure to remove architectural barriers in existing facilities where such removal is readily achievable.” 28 U.S.C. § 12182(b)(2)(A)(iv). Plaintiff alleges discrimination based on architectural barriers in and around the facility.
Further, courts may issue a permanent injunction as part of a default judgment. Burrell v. Twin Goose, LLC, No. 3:16-CV-1079-L, 2017 WL 9471837 (N.D. Tex. Jan. 19, 2017), R. & R. adopted as modified, No. 3:16-CV-1079-L, 2017 WL 4230499 (N.D. Tex. Sept. 25, 2017). A grant of injunctive relief requires the requesting party to establish: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs the threatened harm; and (4) the injunction will not disserve the public interest. Id. at *3, citing Enrique Bernat F., S.A. v. Guadalajara, Inc., 210 F.3d 429, 442 (5th Cir. 2000). Here, Plaintiff has failed to explain how any of these elements are met in his three-page Motion. Accordingly, Plaintiff's Motion for Default Judgment should be denied. See id. (recommending denial of a motion for default judgment for failing “to explain how the requirements for injunctive relief are met in this case”).
This failed Motion for Default Judgment represents Plaintiff's fourth strike in this case. A district court has the inherent authority to dismiss a case for want of prosecution. Fed.R.Civ.P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 630-33 (1962). This power may be exercised to effect the orderly and expeditious disposition of cases where less severe sanctions are unavailable. See Jones v. Caddo Parish Sch. Bd., 704 F.2d 206, 214 (5th Cir. 1983); Hejl v. State of Texas, 664 F.2d 1273, 1274-75 (5th Cir. 1982), cert. denied, 456 U.S. 933 (1982). Because Plaintiff has been given multiple opportunities to file an adequate Motion for Default Judgment and has failed to do so, choosing instead to submit a three-page Motion that fails to address any element of injunctive relief, the undersigned RECOMMENDS that the above styled and numbered cause be dismissed with prejudice.
IV. CONCLUSION
It is therefore RECOMMENDED Plaintiff's Motion for Default Judgment (ECF No. 17) be DENIED. It is further RECOMMENDED that Plaintiff's claim be dismissed for want of prosecution.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are made. The District Court need not consider frivolous, conclusive, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).