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Bledsoe v. A & Z Pharmacy, LLC

United States District Court, W.D. Louisiana, Shreveport Division

February 10, 2017

JAMES BLEDSOE
v.
A & Z PHARMACY, LLC

          HAYES MAGISTRATE JUDGE

          MEMORANDUM RULING

          ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion for Default Judgment filed by Plaintiff, James Bledsoe. Record Document 15. Plaintiff seeks a default judgment against Defendant, A & Z Pharmacy, LLC. For the reasons given below, Plaintiffs Motion For Default Judgment is GRANTED.

         I. Factual & Procedural Background

         Plaintiff alleges that he is a qualified individual with a disability for purposes of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and that Defendant, A & Z Pharmacy, LLC, is in violation of Title III of the ADA due to barriers existing at Rite Care Pharmacy, a property allegedly owned by Defendant ("the Property"). Plaintiff alleges that he has visited the Property numerous times and desires to visit it in the future, but has experienced difficulty due to certain architectural barriers. He identifies issues with parking spaces, a ramp located in the parking area, and the pharmacy windows.[1] Due to these barriers, Plaintiff alleges that Defendant is not in compliance with ADA regulations, 28 C.F.R. § 36.101, et seq. He also alleges that the necessary alterations to remove the barriers are readily achievable, reasonably feasible, would be easily accomplished, and would not place an undue burden on Defendant. Record Document 1, p. 4.

         Plaintiff filed his complaint on October 29, 2015 seeking declaratory and injunctive relief, as well as attorneys' fees and costs. On January 7, 2016, Plaintiff filed a Motion for Entry of Default [Record Document 5], and on January 8, 2016, the Clerk filed an Entry of Default against Defendant [Record Document 7]. On July 12, 2016, the Clerk issued a Notice of Intent to Dismiss for Failure to Prosecute. Plaintiff then filed this Motion for Default Judgment [Record Document 15].[2] At no time has Defendant participated in this action.

         II. Standard

         A default judgment involves three steps: (1) default, (2) entry of default, and (3) default judgment. N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Or. 1996) (citing Fed.R.Civ.P. 55(a)). "A default occurs when a defendant has failed to plead or otherwise respond to the complaint within the time required by the Federal Rules. An entry of default is what the clerk enters when the default is established by affidavit or otherwise. After defendant's default has been entered, plaintiff may apply for a judgment based on such default. This is a default judgment." Id. (citations omitted).

         By defaulting, a defendant admits to the plaintiffs well-pleaded allegations of fact, at least with respect to liability. Jackson v. FIE Corp., 302 F.3d 515, 524 (5th Or. 2002) (citing Nishimatsu Constr. Co., Ltd. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Or. 1975)). Even though the facts are admitted, the plaintiff still has the burden of showing that they give rise to a viable cause of action. See Nishimatsu Constr., 515 F.2d at 1206. In addition, a default judgment "must not differ in kind from, or exceed in amount, what is demanded in the pleadings." Fed.R.Civ.P. 54(c).

         III. Discussion

         A. Liability

         Title III of the ADA provides, "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). Discrimination in this context includes "a failure to remove architectural barriers ... in existing facilities . . . where such removal is readily achievable." § 12182(b)(2)(A)(iv). "Existing facilities" means those structures built prior to January 26, 1992, the effective date of the act. Tatum v. Doctor's Assocs., Inc., No. CV14-2980, 2016 WL 852458, at *3 (E.D. La. Mar. 4, 2016). In addition, "Any alteration to a place of public accommodation . . . after January 26, 1992, shall be made so as to ensure that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." 28 C.F.R. § 36.402(a)(1). New construction, that with first occupancy after January 26, 1993, must be designed and constructed so that it is readily accessible to and usable by individuals with disabilities. 28 C.F.R. § 36.401(a)(1). Thus, the ADA categorizes places of public accommodation into three groups: existing facilities, those with alterations, and new construction.

         As a preliminary matter, pharmacies are specifically listed as places of public accommodation for purposes of Title III. 42 U.S.C. § 12181(7)(F). Additionally, Plaintiff has provided a deed showing that Defendant purchased the Property in 2011, as well as property tax records showing Defendant to be the owner of the Property. Record Document 15-4. Thus, as an owner of a place of public accommodation, Defendant is subject to 42 U.S.C. § 12182(a).

         Plaintiff identifies three current barriers at the property: "(A) the accessible-designated parking space is not adjacent to the required access aisle; (B) the sole accessible-designated parking space is not van accessible; and (C) the measured running slope along the base of the curb ramp is 16.1% in lieu of a maximum of 8.3%." Record Document 15-1, p. 3. Plaintiff claims these are architectural barriers because they are not in compliance with the 1991 ADA Accessibility Guidelines ("ADAAG").[3] The ADAAG are regulations promulgated at the instruction of Congress in order to enforce Title III of the ADA. Lara v. Cinemark USA. Inc., 207 F.3d 783, 786 (5th Cir. 2000). They contain detailed technical requirements for buildings and facilities to ensure maximum accessibility for ...


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