United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
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.
Factual & Procedural Background
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. 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.
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
At no time has Defendant participated in this action.
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).
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 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
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).
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"). 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 ...