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Jeanette Brown v. Mt. Fuji Japanese Restaurant

June 20, 2012

JEANETTE BROWN,
PLAINTIFF,
v.
MT. FUJI JAPANESE RESTAURANT, MAGGIO'S PIZZA AND PASTA, AND HELLO GORGEOUS SALON ASSOCIATES OWNER, DEFENDANTS.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

ORDER

This matter having come before the Court on Plaintiff's motion for default judgment against Defendant Hello Gorgeous Salon [84] and Defendant's motion to set aside entry of default [87]; and

The Court having considered the submissions of the parties; and It appearing that on August 18, 2011, Plaintiff filed an Amended Complaint seeking injunctive relief, attorney's fees and costs under the Americans with Disabilities Act, 42 U.S.C. § 12181 and New Jersey Law Against Discrimination from businesses located in The Plaza at Deptford; and

Plaintiff having alleged that she is an individual with disabilities who visited each Defendant's property in October of 2011, and plans to return to each property to avail herself of goods and services offered to the public "and also to assure herself that each property is in compliance with the ADA," (Am. Compl. ¶ 6); and

Plaintiff having further alleged, specifically with regard to Defendant Hello Gorgeous:

(a) There is no correct disabled accessible sign on the restroom door. Due to Plaintiff's disabilities she was unable to locate the bathroom without assistance. Plaintiff was also fearful that she would not be able to find the bathroom if she had an urgent need to go due to her disabilities. This is in violation of 28 CFR Part 36-36.304 and Section 4.30 through 4.30.7 of the ADAAG.

(b) The door to the restroom has a round knob and not a right angle door knob. Due to her disabilities, Plaintiff could not access the bathroom without assistance. This is in violation of 28 CFR Part 36-36.304 and Section 4.13.9 of the ADAAG. An "L" shaped handle, one with a right angle, is easier for the disabled to operate.

(c) There are no grab bars by the toilet seat back and side walls. Plaintiff could not use the bathroom without risk of failing [sic] and feared injuring herself because of her disabilities. This is in violation of 28 CFR Part 36-36.304 and Sections 4.16.6, 4.17.6, 4.26.1 and 4.26.2 of the ADAAG.

(d) There are no proper emergency flashing lights and alarm sound at the front door entrance. Plaintiff believed if there was an emergency she would have a panic attack or become disoriented, lose coordination and not be able to find the exit and leave the building in the event of an emergency. This is in violation of 28 CFR Part 36-36.304 and Sections 4.28.1, 4.28.2 and 4.28.3 of the ADAAG. (Id. at ¶ 20.)

The Court finding that on September 6, 2011, the docket reflects that Summonses were returned executed as to Defendants Mt. Fuji Japanese Restaurant and Maggio's Pizza and Pasta, but not as to Hello Gorgeous; and

Nonetheless, on September 27, 2011, Plaintiff requested entry of default against Hello Gorgeous, supported simply by an Affidavit of Counsel which reads:

Defendant HELLO GORGEOUS was served with the amended complaint on 8/18/11 with answer due 9/8/11. Said Defendant has failed to plead or otherwise defend as provided by the Rules. Plaintiffs request the Clerk enter Default against said Defendant, HELLO GORGEOUS.

It appearing that a Clerk's Entry of Default was made on September 28, 2011, and on September 29, 2011, Plaintiff moved for Default Judgment against Hello Gorgeous Salon; and The Court finding that the Federal Rules of Civil Procedure provide for entry of default when a party has "failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise," Fed. R. Civ. P. 55(a); and

The Court finding that final judgment by default can be entered (1) by the clerk when the defendant has been defaulted for failure to appear and when plaintiff's claim for damages is a determinable sum, or (2) by the court with notice to the defendant if ...


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