United States District Court, E.D. Michigan, Southern Division
R. Grand, Mag. Judge
AMENDED OPINION AND ORDER DENYING WITHOUT PREJUDICE
MOTION FOR DEFAULT JUDGMENT 
E. LEVY, UNITED STATES DISTRICT JUDGE
Howard Cohan filed the complaint in this matter on June 25,
2019. (ECF No. 1.) Defendant was served on August 5, 2019
(ECF No. 3), and its answer was due August 26, 2019. Fed. R.
Civ. Pro. 12(a)(1)(A)(i). To date, Defendant has not filed an
answer or otherwise appeared. Plaintiff obtained a
clerk's entry of default on September 26, 2019. (ECF No.
8.) On October 31, 2019, Plaintiff filed a motion for entry
of default judgment, seeking a default and permanent
injunction under Federal Rule of Civil Procedure 55. (ECF No.
an Americans with Disabilities Act (“ADA”) claim
against Defendant's hotel. Plaintiff states that he is a
resident of Florida. He alleges that he travels to Michigan
several times each year to visit friends and to shop. He
prefers staying in the Novi area, and most recently visited
Michigan in May 2019 with intent to return in September 2019.
He alleges that Defendant owns or operates the Westin
Southfield Detroit hotel.
states that he has spine, leg, shoulder, knee, and thumb
issues. Plaintiff visits hotels before staying in them to
determine whether they will be accessible to him. He
describes himself as a tester who inspects facilities for
accessibility in order to advance the purposes of the ADA.
alleges that he visited Defendant's hotel on October 19,
2018, and on May 22, 2019, and he encountered barriers to
accessibility. He also alleges that he is a customer of
Defendant's hotel brand and would return in September
2019 if Defendant modifies its facility to remove the
barriers he encountered.
Plaintiff introduces his second count by referencing
“SpringHill Suites by Marriott Detroit
Southfield.” (ECF No. 1, PageID.5.) He refers to the
“Facility, ” which he previously defined as
Defendant's hotel before he lists the barriers he
encountered. Yet, it is not clear whether the list of
barriers in the complaint actually relate to Defendant's
Westin Southfield or to SpringHill Suites.
lists approximately eighteen specific barriers that he
encountered at SpringHill Suites or Defendant's hotel in
the loading zone, lobby men's restroom, meeting level
men's restroom, and the pool level men's locker room
restroom. As to each of these barriers, Plaintiff states that
they cause him difficulty in safely using each element of the
facility because of his impairments.
Federal Rule of Civil Procedure 55(a), after a clerks entry
of default has been entered against a defendant, that
defendant is deemed to have admitted all well-pleaded
allegations related to liability. Antoine v. Atlas
Turner, Inc., 66 F.3d 105, 110-11 (6th Cir. 1995).
Plaintiff must apply to the Court for entry of a default
judgment. Fed.R.Civ.P. 55(b)(2). Federal Rule of Civil
Procedure 55(b)(2) states that when entering a default
judgment, the Court “may conduct hearings or make
referrals- preserving any federal statutory right to a jury
trial-when, to enter or effectuate judgment, it needs to: (A)
conduct an accounting; (B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or (D)
investigate any other matter.” The decision whether to
grant a default judgment is in the sound discretion of the
Court. Antoine, 66 F.3d at 108. The Court is
compelled under Rule 55(b) to undertake a thorough analysis
before awarding damages. Id. “Even when a
default judgment is warranted based on a party's failure
to defend, the allegations in the complaint with respect to
the amount of the damages are not deemed true. The district
court must instead conduct an inquiry in order to ascertain
the amount of damages with reasonable certainty.”
Vesligaj v. Peterson, 331 Fed. App'x 351, 355
(6th Cir. 2009).
general, Rule 55(b) contemplates an award of damages in
default judgment cases. But in this case, Plaintiff seeks
injunctive and declaratory relief, as well as an award of
attorney fees and costs. With respect to his request for
injunctive and declaratory relief, Plaintiff correctly notes
that Title III of the ADA, under which he brought his
complaint as a private citizen, only authorizes injunctive
relief and not money damages. See 42 U.S.C. §
injunction is an extraordinary remedy. A court acting in
equity exercises its discretion with care. United States
v. Aiken, 867 F.2d 965 (6th Cir. 1989) suggests that the
Court has authority to exercise its discretion to enter