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                                                                               [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 14-12752
                               Non-Argument Calendar
                             ________________________

                        D.C. Docket No. 9:12-cv-81401-DMM

PORTIA SURTAIN,

                                                      Plaintiff - Appellant,

versus

HAMLIN TERRACE FOUNDATION,
d.b.a. Hamlin Place of Boynton Beach,

                                                Defendant - Appellee.
                             ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                    (June 16, 2015)

Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

         Portia Surtain appeals the District Court’s order denying her motion for a

default judgment and sua sponte dismissing with prejudice her second amended
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complaint. Surtain’s complaint contains essentially three claims. First, she alleges

that her former employer, Hamlin Terrace Foundation, discriminated against her

on the basis of race (she is African-American) by handling her request for medical

leave differently than it did the requests of white employees, in violation of Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the

Civil Rights Act of 1991 (“Section 1981”), 42 U.S.C. § 1981; and the Florida Civil

Rights Act (“FCRA”), Fla. Stat. § 760.10. Second, she alleges that Hamlin

discriminated against her on the basis of disability by terminating her employment

when it discovered she had a medical disability, in violation of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Finally, she alleges that

Hamlin interfered with, or retaliated against her for exercising, her right to take

medical leave by providing inadequate paperwork and then firing her, in violation

of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq.

We conclude that the District Court evaluated Surtain’s race- and disability-

discrimination claims under the wrong standard, but that even under the right

standard, her complaint plainly fails to make out a claim of disability

discrimination. We also conclude that the court improperly dismissed the

interference portion of her FMLA claim without giving her notice and an

opportunity to respond, though it properly dismissed the retaliation portion of this

claim. Accordingly, we affirm in part and vacate and remand in part.



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                                               I.

       Surtain filed her initial complaint on December 21, 2012. 1 After Hamlin

failed to respond in a timely manner, Surtain obtained an entry of default against

Hamlin from the Clerk of Court. She then moved the District Court to enter a

default judgment against Hamlin. Hamlin failed to respond to this motion or to the

District Court’s order to show cause why Surtain’s motion should not be granted.

The court dismissed Surtain’s race- and disability-discrimination claims with leave

to amend, finding that she had failed to allege facts sufficient to withstand a

dismissal under Federal Rule of Civil Procedure 12(b)(6), and thus to support the

entry of judgment. The District Court found that the complaint did state a valid

FMLA claim, however, and concluded that Surtain was entitled to judgment on

this claim. 2



       1
          We note that Surtain’s initial complaint, like her first and second amended complaints,
is a shotgun pleading. The second amended complaint contains five counts: Count I, a claim of
race discrimination under Title VII; Count II, the same claim of race discrimination under 42
U.S.C. § 1981; Count III, a claim under the ADA; Count IV, a FMLA claim, and Count V, a
FCRA claim. Twenty paragraphs of factual allegations precede Count I and are incorporated
into that count by reference. Count II thereafter incorporates by reference Count I, and each of
Counts III through V incorporate by reference all preceding counts. The upshot is that all counts
incorporate factual allegations that are plainly immaterial to the claims the respective counts
purport to state. On remand, we suggest that the District Court order plaintiff’s counsel to
replead the claims that survive, including in each count only the facts germane to the respective
claim.
       2
        This was a provisional ruling, because, as noted infra, the court subsequently
determined that service of process had been inadequate.




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      Surtain filed an amended complaint, to which Hamlin again failed to

respond. Surtain sought and received another entry of default from the Clerk, and

moved a second time for default judgment. The District Court then called a status

conference, at which the court inquired as to both the manner of service of process

and the nature of Surtain’s claims in general. On the latter point, the court

expressed doubts as to the viability of (1) Surtain’s disability-discrimination claim,

given that she had neither informed Hamlin of the nature of her disability or

afforded it an opportunity to provide a reasonable accommodation, and (2) her

race-discrimination claims, noting that she was required to point to substantially

similar comparators who had received different treatment.

      At the conclusion of the conference, the District Court concluded that

neither the initial complaint nor the amended complaint were properly served,

denied Surtain’s second motion for entry of default judgment, and ordered her to

re-serve Hamlin. Surtain promptly filed a second amended complaint, which she

properly served on Hamlin’s registered agent, and in which she provided a

modicum of additional information about her disability. After Hamlin again failed

to respond, and Surtain again obtained an entry of default from the Clerk, Surtain

filed a third motion for entry of default judgment as to liability.

      After reviewing the allegations of the complaint, the District Court denied

the motion. Regarding the race-discrimination claims, the District Court held that,



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even taking the well-pleaded factual allegations in the complaint as true, Surtain

failed to make out a prima facie case under McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 3 The court held that the

second amended complaint failed to allege enough factual matter to support the

conclusion that the white employees who Surtain claimed received different

treatment were similarly situated.

       Regarding Surtain’s disability-discrimination claim, the District Court

similarly found that her complaint failed to make out a prima facie case under

McDonnell Douglas. The court first concluded that she was not a “qualified

individual” under the ADA because she failed to adequately plead that she could

have performed her job had she been afforded a reasonable accommodation.

Alternatively, the court found that she had not delineated her job responsibilities or

alleged the length of time between her initial request for medical leave and her

diagnosis. Without this information, the court concluded, it was impossible to

ascertain whether an accommodation would have been reasonable or not.

       Regarding Surtain’s FMLA claim, the District Court held that the complaint

failed to allege sufficient facts to support recovery. Specifically, Surtain failed to

       3
          A plaintiff may use circumstantial evidence to establish a prima facie case of race
discrimination under McDonnell Douglas by showing by a preponderance of the evidence that:
“(1) he belongs to a racial minority; (2) he was subjected to adverse job action; (3) his employer
treated similarly situated employees outside his classification more favorably; and (4) he was
qualified to do the job.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam).



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adequately plead that she was an eligible employee under the FMLA, because the

complaint did not allege that she had worked for Hamlin for at least 1,250 hours

during the previous twelve months. Nor did it contain any facts supporting her

conclusory allegation that Hamlin was a covered employer under the FMLA.

      Finding the allegations of the complaint insufficient to justify entry of

judgment on Surtain’s claims for relief, the District Court denied her motion for

default judgment and dismissed her case with prejudice. The court declined to

permit Surtain to amend her complaint, noting that it had already granted her leave

to do so twice.

      Surtain raises two issues on appeal. First, she argues that the District Court

erred in denying her motion for default judgment, arguing that the factual

allegations in her complaint were sufficient to support the claims she asserted.

Second, she argues that the court’s sua sponte dismissal of her complaint was

procedural error because she was not given notice of the court’s intent to dismiss

or an opportunity to amend her complaint. We will address each argument in turn.

                                          II.

      We review the denial of a motion for default judgment for abuse of

discretion. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316

(11th Cir. 2002). “A district court abuses its discretion if it applies an incorrect

legal standard, applies the law in an unreasonable or incorrect manner, follows



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improper procedures in making a determination, or makes findings of fact that are

clearly erroneous.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068

(11th Cir. 2014) (quotation marks omitted).

       When a defendant has failed to plead or defend, a district court may enter

judgment by default. Fed. R. Civ. P. 55(b)(2).4 Because of our “strong policy of

determining cases on their merits,” however, default judgments are generally

disfavored. In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003).

“[W]hile a defaulted defendant is deemed to admit the plaintiff’s well-pleaded

allegations of fact, he is not held to admit facts that are not well-pleaded or to

admit conclusions of law.” Cotton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267,

1278 (11th Cir. 2005) (alteration omitted) (quotation marks omitted). Entry of

default judgment is only warranted when there is “a sufficient basis in the



       4
           The relevant portion of Rule 55 of the Federal Rules of Civil Procedure reads:

       (a) Entering a Default. When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.

       (b) Entering a Default Judgment.

        (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made
certain by computation, the clerk—on the plaintiff’s request, with an affidavit showing the
amount due—must enter judgment for that amount and costs against a defendant who has been
defaulted for not appearing and who is neither a minor nor an incompetent person.

      (2) By the Court. In all other cases, the party must apply to the court for a default
judgment. . . .




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pleadings for the judgment entered.” Nishimatsu Constr. Co. v. Houston Nat’l

Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). 5

       Although Nishimatsu did not elaborate as to what constitutes “a sufficient

basis” for the judgment, we have subsequently interpreted the standard as being

akin to that necessary to survive a motion to dismiss for failure to state a claim.

See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1370 n.41 (11th Cir. 1997)

(“[A] default judgment cannot stand on a complaint that fails to state a claim.”).

Conceptually, then, a motion for default judgment is like a reverse motion to

dismiss for failure to state a claim. See Wooten v. McDonald Transit Assocs., Inc.,

775 F.3d 689, 695 (5th Cir. 2015) (stating in the context of a motion for default

judgment, “whether a factual allegation is well-pleaded arguably follows the

familiar analysis used to evaluate motions to dismiss under Rule 12(b)(6)”).

       When evaluating a motion to dismiss, a court looks to see whether the

complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007)). This


       5
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit issued prior to
October 1, 1981.




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plausibility standard is met “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1965).

       We turn our attention to the claims that the District Court dismissed under

Rule 12(b)(6): the race-discrimination claims 6; the disability-discrimination claim;

and the FMLA claim.

                                               A.

       Title VII provides that it is unlawful for an employer to discriminate against

an employee because of the employee’s race. See 42 U.S.C. § 2000e-2(a)(1); see

also 42 U.S.C. § 2000e-2(m) (prohibiting employers from using race as a

“motivating factor” in formulating employment practices ). To state a race-

discrimination claim under Title VII, a complaint need only “provide enough

factual matter (taken as true) to suggest intentional race discrimination.” Davis v.

Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (quotation

marks omitted) (citing Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). The

complaint “need not allege facts sufficient to make out a classic McDonnell


       6
         Surtain alleged race-discrimination claims under Title VII, Section 1981, and the
FCRA. Because the same analytical framework and proof requirements that apply to
employment discrimination claims under Title VII also apply to discrimination claims under
Section 1981, see Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 n.14 (11th Cir. 2011),
and the FCRA, see Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998),
for convenience, we consider Surtain’s race-discrimination claims under the rubric of Title VII.




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Douglas prima facie case.” Id. (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,

511, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002)). This is because McDonnell

Douglas’s burden-shifting framework is an evidentiary standard, not a pleading

requirement. Swierkiewicz, 534 U.S. at 510, 122 S. Ct. at 997. Accordingly, a

court may properly enter default judgment on a claim of racial discrimination when

the well-pleaded factual allegations of a complaint plausibly suggest that the

plaintiff suffered an adverse employment action due to intentional racial

discrimination.

      The District Court did not use the Iqbal/Twombley plausibility standard to

determine whether to enter default judgment on Surtain’s race-discrimination

claims. Instead, the District Court held that Surtain “fail[ed] to plead a valid claim

for relief,” because she had not made out a prima facie case of racial discrimination

under McDonnell Douglas. In applying the wrong legal standard, the District

Court abused its discretion. See Aycock, 769 F.3d at 1068. We therefore vacate

the District Court’s denial of default judgment as to Surtain’s race-discrimination

claims and remand for reconsideration under the correct standard.

                                          B.

      The ADA prohibits employers from discriminating against disabled

employees. 42 U.S.C. § 12112(a). To state a discrimination claim under the ADA,

a plaintiff must allege sufficient facts to plausibly suggest “(1) that he suffers from



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a disability, (2) that he is a qualified individual, and (3) that a ‘covered entity’

discriminated against him on account of his disability.” Cramer v. Fla., 117 F.3d

1258, 1264 (11th Cir. 1997). The ADA defines “disability” to include: “(A) a

physical or mental impairment that substantially limits one or more of the major

life activities of such individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment.” 42 U.S.C. § 12102(2); see also 29 C.F.R.

§ 1630.2(g). For purposes of the ADA, a qualified individual is one “who, with or

without reasonable accommodation, can perform the essential functions” of her

employment. 42 U.S.C. § 12111(8).

      Here again, the District Court erred by denying Surtain’s motion for default

judgment for failing to make out a prima facie case under McDonnell Douglas. As

discussed above, the correct inquiry in the context of a motion for a default

judgment is whether the plaintiff has alleged sufficient facts to state a plausible

claim for relief. See supra part II.A.

      We conclude, however, that even under the appropriate standard, Surtain’s

complaint is insufficient. According to the complaint, Hamlin was privy to the

following information: that Surtain had visited a doctor for unknown health issues,

and that the doctor had concluded that Surtain could not return to work until

further notice. Surtain suggests that, solely on the basis of these two facts, Hamlin

believed her to be suffering from a disability—not just any medical condition, but



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one that substantially limited a major life activity, see 42 U.S.C. § 12102(2)—and

decided to terminate her employment on that basis. We do not believe such a

conclusion plausibly follows from these allegations. Knowledge that an employee

has visited a doctor and receipt of a conclusory doctor’s excuse, without more, do

not plausibly underpin an employer’s perception that the employee suffers from a

disability. Surtain’s complaint failed to state a discrimination claim under the

ADA, and thus she was not entitled to default judgment on that claim.

                                                 C.

       The FMLA protects employees against interference with the exercise or

attempted exercise of their substantive rights under the statute. 29 U.S.C.

§ 2615(a)(1). This prohibition has also been interpreted to provide protection

against retaliation for exercising or attempting to exercise rights under the statute. 7



       7
          We note that there are technically three types of employee activity that can give rise to a
retaliation claim under the FMLA. The first is opposing or complaining about any unlawful
practice under the Act. 29 U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220(a)(2). The second is filing
a charge or participating in any inquiry or proceeding under the Act. 29 U.S.C. § 2615(b); 29
C.F.R. § 825.220(a)(3). The third is exercising or attempting to exercise FMLA rights. See 29
C.F.R. § 825.220(c). This last type, while not explicitly mentioned in the text of the statute, has
been grounded in the Act’s prohibition against interference with an employee’s exercise or
attempted exercise of rights provided by the Act. Id. See Hodgens v. Gen. Dynamics Corp., 144
F.3d 151, 160 n.4 (1st Cir. 1998); see also Brungart v. BellSouth Telecommunications, Inc., 231
F.3d 791, 798 n.5 (11th Cir. 2000) (“The statute itself uses the language of interference, restraint,
denial, discharge, and discrimination, not retaliation. But nomenclature counts less than
substance. And the substance of the FMLA provisions as they concern this case is that an
employer may not do bad things to an employee who has exercised or attempted to exercise any
rights under the statute.”). Surtain does not allege that she opposed or complained about an
unlawful practice under the Act, or filed a charge or participated in any proceeding under the



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See 29 C.F.R. § 825.220(c). To state a claim of interference, the employee must

allege that he was entitled to a benefit under the FMLA and was denied that

benefit. Strickland v. Water Works and Sewer Bd. of Birmingham, 239 F.3d 1199,

1206–07 (11th Cir. 2001). To state a claim for retaliation, an employee must

allege sufficient facts to plausibly suggest that: “(1) he engaged in a statutorily

protected activity; (2) he suffered an adverse employment decision; and (3) that the

decision was causally related to the protected activity.” Id. at 1207. To recover on

either an interference or a retaliation claim under the FMLA, the employee must

have been employed for at least twelve months by the employer and worked at

least 1,250 hours during the previous twelve-month period. See 29 U.S.C.

§ 2611(2)(A). The FMLA only applies to private-sector employers with fifty or

more employees. Id. § 2611(4)(A).

       Surtain alleged generally that she was a covered employee and that Hamlin

was a covered employer for the purposes of the FMLA, but such conclusory

allegations are an insufficient basis upon which to enter default judgment, see

Cotton, 402 F.3d at 1278; see also Twombly, 550 U.S. at 555, 127 S. Ct. at 1964–



Act. Thus, any alleged retaliation by Hamlin must be for exercising or attempting to exercise
rights under the Act.

     That said, it is not at all clear that Surtain alleges a separate retaliation claim under the
FMLA, apart from her interference claim. We address this claim out of an abundance of caution.




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65. Well-pleaded facts are required. Surtain did allege that she was employed by

Hamlin from 2006–2010, thereby meeting the twelve-month employment

requirement to be a covered employee, but she did not allege that she had worked

at least 1,250 hours during the previous twelve-month period. Nor did she allege

any facts about how many people Hamlin employed to support her conclusory

allegation that Hamlin is a covered employer. Because Surtain’s complaint

contained insufficient allegations to state a plausible claim under the FMLA, the

District Court correctly denied her motion for default judgment on that ground.

                                         III.

      In light of our disposition, we need only address Surtain’s argument of

procedural error as it relates to her disability-discrimination and FMLA claims.

Prior to dismissing an action on its own motion, a court must provide the plaintiff

with notice of its intent to dismiss and an opportunity to respond. See Tazoe v.

Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011); see also Jefferson Fourteenth

Assocs. v. Wometco de P.R., Inc., 695 F.2d 524, 527 (11th Cir. 1983) (“The rule

that emerges from these cases is that courts exercise their inherent power to

dismiss a suit that lacks merit only when the party who brought the case has been

given notice and an opportunity to respond.”). An exception to this requirement

exists, however, when amending the complaint would be futile, or when the

complaint is patently frivolous. See Tazoe, 631 F.3d at 1336.



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      Although the District Court cited the fact that it had previously given Surtain

leave to amend as reason to dismiss her complaint with prejudice, the court never

gave Surtain notice that her FMLA claim was deficiently pled. At the status

conference, the court indicated that it had concerns as to the sufficiency of the

factual allegations of Surtain’s race- and disability-discrimination claims but

expressed no concerns about the sufficiency of her FMLA claim. In fact, the court

originally entered judgment for Surtain on this claim.

      Surtain’s FMLA claim is not patently frivolous, and allowing her an

opportunity to amend her interference claim would not appear to be futile.

However, allowing leave to amend the retaliation claim, assuming Surtain

intended to plead one, see supra note 7, would be futile. Any inference that

Hamlin fired Surtain in retaliation for requesting FMLA paperwork is belied by the

facts alleged in her complaint. According to the complaint, Hamlin actively sought

to assist Surtain in completing the forms. Hamlin twice requested information

necessary to complete the FMLA medical certification from Surtain’s physician.

Hamlin even contacted Surtain after providing the forms to inquire about her

progress completing them. Surtain was eventually terminated for being absent

from work for ten days without filing a written request for leave, as required by

Hamlin’s employee leave policy. If, as the complaint alleges, Hamlin purposefully

failed to provide sufficient information for Surtain to fill out her FMLA



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paperwork, Hamlin might be liable for interfering with Surtain’s rights under the

FMLA, but not for retaliating against her. Accordingly, the District Court erred in

dismissing Surtain’s interference claim without granting her leave to address the

identified pleading deficiencies, but did not err in dismissing her retaliation claim,

because granting leave to amend that claim would be futile.

      In contrast, the District Court did give Surtain notice of the deficiencies of

her claim of disability discrimination. When the court initially denied default

judgment on Surtain’s disability claim, it explained that she had failed to allege

sufficient facts to support each element of an ADA claim, and granted her leave to

replead. Moreover, the District Court expressed these same concerns in greater

detail at the status conference, stating that it was unclear from the complaint what

disability Surtain was alleging, and whether Hamlin ever believed her to have a

disability. Surtain failed to correct these deficiencies even after being put on

notice, thus the District Court did not err in dismissing her disability-

discrimination claim.

                                          IV.

      In sum, we AFFIRM the District Court’s denial of default judgment and

dismissal of Surtain’s disability-discrimination and FMLA retaliation claims. We

VACATE the District Court’s dismissal with prejudice of Surtain’s race-

discrimination and FMLA interference claims, as well as its denial of default



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judgment as to the race-discrimination claim and REMAND for further

proceedings consistent with this opinion.




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