ORDER DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT

BETH LABSON FREEMAN, District Judge.

Plaintiff Scott Johnson ("Plaintiff") moves for default judgment against Defendant Byer Properties, L.P. ("Defendant") in this action for violations of the Americans with Disabilities Act of 1990 and the California Unruh Civil Rights Act. See Mem. P. & A. ISO Appl. Default J. ("Mem."), ECF 16-1. The Court held a hearing on Plaintiff's motion on January 4, 2018.

At the hearing, the Court noted that although Plaintiff requests $12,000 in statutory damages in his motion for default judgment, the Complaint itself only contains a prayer for $4,000 in statutory damages. See ECF 1 ("Compl.") at 8. In particular, Plaintiff's motion for default judgment asserts that although Plaintiff visited Defendant's property seven times, Plaintiff requests only three statutory penalty assessments of $4,000 each for a total of $12,000. See Mem. at 6. This representation, or any similar allegation, is entirely absent from the Complaint. Therefore, a due process issue exists because Defendant may have chosen to default based on the damages sought in the Complaint. "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). As currently pled, Plaintiff has not proven entitlement to more than $4,000 in statutory damages.

At the hearing, Plaintiff requested leave to amend the Complaint in order to allege that he seeks statutory penalty assessments of $4,000 per violation, and to specify the number of violations for which he seeks to recover. The Court granted Plaintiff's request to amend and serve the amended complaint on Defendant.

For the foregoing reasons, as well as those stated on the record at the hearing, Plaintiff's motion for default judgment is DENIED WITHOUT PREJUDICE. Plaintiff may file an amended complaint on or before February 5, 2018.

IT IS SO ORDERED.