MEMORANDUM OPINION AND ORDER

VIRGINIA EMERSON HOPKINS, District Judge.

I. INTRODUCTION

This case arises under Title III of the Americans With Disabilities Act ("ADA" or the "Act"). (Doc. 1 at 1 ¶ 1). As a result of the pro tanto dismissal of Defendant Integrity, LLC ("Integrity") on January 15, 2015 (Doc. 31),1 only one defendant remains in the case-Rajendra Kumar D. Patel ("Mr. Patel").

Pending before the court is Plaintiff Subrena Todd's ("Ms. Todd") Verified Motion for Default Judgment (Doc. 32) (the "Motion") against Mr. Patel filed on February 3, 2015.2 The Motion seeks injunctive relief only, requests that the court retain jurisdiction to award attorney's fees and costs (Doc. 32 at 5), and attaches a proposed default judgment. (Doc. 32-1). For the reasons discussed below, the Motion is due to be denied without prejudice.

II. STANDARD ON DEFAULT JUDGMENT

"When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default." Fed. R. Civ. P. 55(a). However, entry of default under Rule 55(a) does not entitle a party to his requested relief. Either the clerk or the court must enter a default judgment under Rule 55(b). Here, Ms. Todd asks the court, and not the clerk, to act pursuant to Rule 55(b)(2).

Generally, the entry of a default judgment is committed to the discretion of the district judge. Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977).3 The factual allegations of a well-pleaded complaint are taken as true; hence, the court must decide if these accepted facts state a cause of action for which relief can be granted. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1987); Nishimatsu Const. Co., Ltd. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) ("There must be a sufficient basis in the pleadings for the judgment entered.") (footnote omitted); Descent v. Kolitsidas, 396 F.Supp.2d 1315, 1316 (M.D. Fla. 2005) (same). When the amount of damages due is uncertain, an evidentiary hearing is often required to determine the sum the defaulting defendant must pay. S.E.C. v. Smyth, 420 F.3d 1225, 1231-32 (11th Cir. 2005). On the other hand, if a specific or, such as here, no sum is sought, a hearing may not be necessary.

As explained by Judge William H. Steele of the United States District Court for the Southern District of Alabama regarding default judgments:

Virgin Records America, Inc. v. Lacey, 510 F.Supp.2d 588, 591-92 (S.D. Ala. 2007) (emphasis added).

III. PROCEDURAL HISTORY AND STATEMENT OF FACTS

On July 18, 2014, Ms. Todd initiated this ADA case. (Doc. 1). On October 27, 2014, the clerk entered a default against Mr. Patel (Doc. 26) pursuant to Rule 55(a) of the Federal Rule of Civil Procedure due to his failure to answer or otherwise respond to Ms. Todd's complaint after having been duly served with it on September 11, 2014. (Doc. 19).

The complaint alleges that Ms. Todd is bound to a wheelchair and suffers from what constitutes a "qualified disability" under the ADA as she is limited in the major life activity of walking and "in the exercise of normal bodily functions." (Doc. 1 at 2 ¶ 3). Ms. Todd states that she, "on numerous occasions within the applicable statutes of limitations period" (Doc. 1 at 4 ¶ 10) has "personally visited SUBWAY in Childersburg, Alabama, but was denied full and equal access to, and full and equal enjoyment of, the facilities within and about SUBWAY, which is the subject of this lawsuit." (Doc. 1 at 2 ¶ 3).

Ms. Todd explains that she lives in Talladega County, where the SUBWAY is located, and that she "frequently travels to th[at] [particular] area" because the SUBWAY's location is "along the most direct route to [her] [d]octor's medical treatment offices." (Doc. 1 at 5 ¶ 11). She also "continues to desire to and has definite plans" to return to the SUBWAY in the future, but is hampered by the discriminatory "barriers to access that remain" there. (Id. at 5 ¶ 12).

Ms. Todd further asserts that Integrity is the lessee and operator of the SUBWAY (Doc. 1 at 2 ¶ 4), and that Mr. Patel is "the owner and lessor of the real property where the [SUBWAY] is located . . . [and] wh[o] also maintains and controls the subject property." (Id. at 3 ¶ 4).

The pleading additionally states that "SUBWAY is a place of public accommodation in that [Integrity] operates a sandwich shop which provides food and beverages to the public." (Id. at 4 ¶ 7). Ms. Todd similarly contends that the building housing the SUBWAY "is a public accommodation covered by the ADA and which must be in compliance therewith." (Id. at 4 ¶ 8).

The complaint contains only one count asserted against the defendants collectively and alleges the following specific Title III violations of the ADA:

(Doc. 1 at 6-8 ¶ 14).

The scope of the default judgment that Ms. Todd wants entered against Mr. Patel is not as broad as the list of public accommodation problems identified in her complaint. (Doc. 32-1). Specifically, she seeks a judgment from this court requiring Mr. Patel to correct the following issues:

(Doc. 32-1 at 2-3).

Concerning the practicality of these changes, Ms. Todd asserts that "[t]he remediation of barriers and accommodations sought by [her] . . . are readily achievable, technically feasible, and would not result in a significant loss of marketing or sales space to [Mr. Patel]." (Doc. 1 at 8 ¶ 18).

On February 24, 2015, this court entered a show cause order on Ms. Todd's Motion requiring Mr. Patel to explain no later than March 16, 2015, why a default judgment should not be entered against him. (Doc. 33). The court directed the clerk to serve Mr. Patel with a copy of this order via regular and certified mail. (Doc. 33 at 2). Service of that order by certified mail was returned to the court as unclaimed. (Doc. 34). To date, Mr. Patel has filed no response to the show cause order.

IV. ANALYSIS

Upon reviewing the complaint, the court concludes that there is a legal basis for awarding the injunctive relief against Mr. Patel by default under the ADA as requested by Ms. Todd in her Motion. However, because her complaint lacks any allegations about any contractual allocation of barrier removal responsibility between Integrity, the tenant, and Mr. Patel, the landlord, and her Motion similarly lacks any discussion about an appropriate division or whether both can be held jointly responsible for remedial work under Title III, the court requires further development of the record before entering the type of injunctive order proposed by Ms. Todd.

A. General Public Accommodation Principles

42 U.S.C. § 12182(a) prohibits disability discrimination with respect to public accommodations and provides:

42 U.S.C. § 12182(a). In sum, "Title III is meant to prevent owners of public places of accommodation from creating barriers that would restrict a disabled person's ability to enjoy the defendant entity's goods, services, and privileges." Morgan v. Christensen, 582 F. App'x 806, 809 (11th Cir. 2014) (citing Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir. 2002)).

Ms. Todd's suit focuses on Title III's so-called "tangible barriers" of discrimination as set forth in § 12182(b)(2)(A)(iv). See Rendon, 294 F.3d at 1283 ("A reading of the plain and unambiguous statutory language at issue reveals that the definition of discrimination provided in Title III covers . . . tangible barriers, that is, physical and architectural barriers that would prevent a disabled person from entering an accommodation's facilities and accessing its goods, services and privileges, see 42 U.S.C. § 12182(b)(2)(A)(iv), and . . . ." (footnote omitted)).

As the ADA specifically describes its prohibition against the existence of tangible barriers:

42 U.S.C. § 12182(b)(2)(A)(iv).

B. Ms. Todd Has Standing To Pursue Injunctive Relief Under Title III of the ADA.

Turning to the issue of standing first, the court determines that the allegations of Ms. Todd's complaint are sufficiently concrete for her to obtain "injunctive relief for violations of 42 U.S.C. §§ 12182(a) and 12182(b)(2)(A)(iv) of the ADA's Title III." Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1336-37 (11th Cir. 2013). Further, "[t]here is no indication in the record that the alleged architectural barriers in the [SUBWAY] have been remedied. As a result, there is a 100 percent likelihood that [Ms. Todd] will suffer the alleged injury again when [s]he returns to the store." Houston, 733 F.3d at 1337. Additionally, there is no indication that "the likelihood of [Ms. Todd] suffering future injury . . . is . . . contingent upon events that are speculative or beyond h[er] control." Id. "Rather, the cause of the injury continues to exist, and the likelihood of [Ms. Todd] encountering that cause in the future depends only on [her] own volition[,]" i.e., her returning to the SUBWAY. Id.

C. Ms. Todd Needs To Better Develop Her Claim for Injunctive Relief Asserted Against Mr. Patel.

The court next addresses whether the Act applies to Mr. Patel in his capacity as a landlord. As set forth above, § 12182(a) parenthetically includes "leases" within its scope which from a plain language standpoint confirms that, as a general matter, Title III of the ADA covers landlords. As one court has explained the ADA's public accommodation provision's impact on lessors, like Mr. Patel, "a landlord must comply with the public accommodation requirements of the ADA (and cannot avoid ADA compliance merely by leasing a public accommodation) . . . . A landlord incurs liability only if the landlord implements a discriminatory policy, practice, or procedure." Haynes v. Wilder Corp. of Delaware, 721 F.Supp.2d 1218, 1228 (M.D. Fla. 2010).

However, how the Title III remedial responsibility is divided between a landlord and a tenant, who are both connected to a non-compliant place of public accommodation, is less clear. The Act does not address allocation at all. The applicable regulations provide some guidance:

28 C.F.R. § 36.201(b) (emphasis added).

Here, Ms. Todd's complaint is completely silent about any lease between Integrity and Mr. Patel and whether that contract includes a provision which directly clarifies which party bears the responsibility for ensuring ADA Title III compliance or whether the agreement has a more generalized "compliance-with-law" provision. See, e.g., Karen E. Field, Note, The Americans with Disabilities Act "Readily Achievable" Requirement for Barrier Removal: A Proposal for the Allocation of Responsibility Between Landlord and Tenant, 15 Cardozo L. Rev. 569, 583 (1993) (hereinafter "Note") ("[A]lthough the Proposed Rule addressed situations in which a lease allows the tenant to make alterations with the landlord's permission, it failed to consider the ramifications of a `compliance-with-law' provision, which allocates responsibility to a particular party for compliance with all relevant federal, state, and local laws." Additionally, Ms. Todd's complaint does not indicate whether the lease has an alterations provision.

Alternatively, assuming that no contractual language exists that would shed light as to the degree in which Mr. Patel or Integrity should bear the ADA public accommodation burden, Ms. Todd's Motion fails to offer any legal framework for how this court should fashion an equitable division between a landlord and a tenant under Title III of the ADA.5 For example, while the court can readily envision why Mr. Patel should be responsible for making the parking lot ADA-compliant as part of a common area approach to allocating the burden, the court, in the absence of any persuasive case authority, has some concerns about whether Mr. Patel should be ordered to make changes to the exterior route/entrance of the SUBWAY as that area is likely part of Integrity's leased premises. See, e.g., Note, 15 Cardozo L. Rev. at 584 ("For example, the landlord is generally deemed to be responsible for the common areas and the tenant for his own premises."). In any event, because Ms. Todd is seeking such a wide array of ADA modifications by way of an injunction, the court is uncomfortable with holding Mr. Patel (despite his default) responsible for all of them, without a record that has been developed more definitely as to her entitlement to such a multi-faceted judgment against him.

IV. CONCLUSION

Accordingly, Ms. Todd's Motion is DENIED WITHOUT PREJUDICE to her right to reseek a default judgment against Mr. Patel on a more developed record as described above.

DONE and ORDERED.