United States District Court, S.D. Texas, Houston Division
OPINION AND ORDER
MELINDA HARMON UNITED STATES DISTRICT JUDGE
before the Court in the above-referenced cause are Plaintiff
BHL Boresight, Inc.'s (“BHL”) Opposed Motion
for Post-Appearance Default Judgment Against Darrell Joy
(“Joy”), or Alternatively, for Order Requiring
Defendant Joy to File Answer, Doc. 312, and Defendant
Joy's Opposed Motion for Extension of Time to File
Answer, Doc. 318. Having considered the Motions, Responses,
Replies, and the relevant law, the Court denies BHL's
Motion and grants Joy's.
a Canadian citizen, Doc. 233 at ¶ 9, and one of the
principals of Defendants Geo-Steering Solutions, Inc. and
Geo-Steering Solutions USA, Inc. (collectively, “GSSI
Defendants”), Doc. 75 at 1. Despite Joy's position,
when BHL initiated this suit in March 2015 it only brought
claims against GSSI Defendants and Statoil Gulf Services, LLC
(“Statoil”). See Doc. 1. After discovery
revealed Joy and Defendant Neil Tice “directed and
instructed Byron Molloy . . . to copy Boresight's
Software, ” however, BHL filed its Motion for Leave to
File First Amended Complaint and Add Additional Parties on
December 1, 2015. Doc. 75 at 1-2. Magistrate Judge Stacy
granted BHL's Motion on August 29, 2016, Doc. 208, and
Joy and his codefendants were thrust into the center of this
acrimonious intellectual-property dispute.
the court issued summons for Joy and several of his
codefendants soon after, at this point only Zaza has been
served. Doc. 228. See generally, Docket of
proceedings, 4:15-cv-00627. Nevertheless, after the First
Amended Complaint (“FAC”) became the operative
pleading, each of Joy's codefendants quickly filed
motions attacking the FAC under Rules 12(b)(1) and 12(b)(6).
See Docs. 230, 232, 246, 253, 259. Joy did not join
in these challenges.
October 20, 2016, however, Joy joined in GSSI's Motion
for Reconsideration of the Court's prior Opinion and
Order granting BHL's Ex Parte Motion for Protection. Doc.
270. In this Motion, Joy attempted to cabin his participation
Boresight has added Darrell Joy as a party to this
litigation. Mr. Joy has not been served and is not before
this court in his personal capacity; however, Mr. Joy is an
officer of GSSI and since this Court's prior order
affects due process considerations for both GSSI and its
officers, Mr. Joy joins in this motion with GSSI.
Doc. 270 at 1 n.1. After this, Joy made no further effort to
participate in the case.
December 7, 2016, BHL then filed the instant Motion for
Post-Appearance Default Judgment, arguing that Joy's
participation in the Motion for Reconsideration brought him
within the Court's jurisdiction despite the fact that he
has yet to be served. Doc. 312. Joy responded to BHL's
Motion on December 8, 2016, by filing his Response in
Opposition, Motion for Extension of Time to File Answer, and
Motion to Dismiss. Docs. 317-19. The parties' motions are
now ripe. Because the Court takes up all of Defendants
Motions to Dismiss in a separate order, however, only the
Motion for Default Judgment and Motion for Extension are
BHL's Motion for Default
Motion for Default Judgment, BHL argues that by participating
in the Motion for Reconsideration, Joy sought affirmative
relief from the Court, thereby making his participation a
general appearance. Doc. 312. Accordingly, BHL seeks an entry
of default judgment against Joy, or in the alternative, an
order from this Court requiring Joy to file an answer.
Id. In his Response, Joy argues that because he
filed a Motion to Dismiss, BHL's Motion for Default is
moot because Fed.R.Civ.P. 55(a) mandates that “there
can be no entry of default unless the defendant has
‘failed to plead or otherwise
defend' against the allegations against
him.” Doc. 319 at 1.
Rule of Civil Procedure 55 allows a party to seek a default
judgment “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend.” When a defendant fails to plead or otherwise
respond to the complaint within the time required by the
Federal Rules of Civil Procedure a default occurs. N.Y.
Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir.
1996). The plaintiff may then apply to the court for a
default judgment. Fed.R.Civ.P. 55(a)(b)(2). Until the Court
obtains personal jurisdiction over the Defendants by way of
service, however, “the defendant has no duty to answer
the complaint and the plaintiff cannot obtain a default
judgment.” Rogers v. Hartford Life and Acc. Ins.
Co., 167 F.3d 933, 937 (5th Cir. 1999) (citing
Broadcast Music, Inc. v. M.T.S. Enter., Inc., 811
F.2d 278, 282 (5th Cir. 1987)). Thus, a defendant's duty
to defend a suit does not arise until he has been served with
process and properly brought before the court. Broadcast
Music, 811 F.2d at 282. If a defendant is improperly
served and the district court thereby fails to acquire in
personam jurisdiction, then a subsequent default judgment is
void. Rogers, 167 F.3d at 940.
of process and personal jurisdiction may be waived by a
party. Familia De Boom v. Arosa Mercantil, S.A., 629
F.2d 1134, 1140 (5th Cir. 1980). One such way an individual
may waive either and submit to the jurisdiction of the court
is by general appearance. Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102
S.Ct. 2099, 2105, 72 L.Ed.2d 492 (1982). “A party makes
a general appearance whenever it invokes the judgment of the
court on any question other than jurisdiction.”
Maiz v. Virani, 311 F.3d 334, 340 (5th Cir. 2002).
“In determining whether conduct is sufficient to be
considered a general appearance, the focus is on affirmative
action that impliedly recognizes the court's jurisdiction
over the parties.” Jones v. Sheehan, Young, &
Culp, P.C., 82 F.3d 1334, 1340 (5th Cir. 1996) (citation
appearance in an action generally involves some presentation
or submission to the court and may result from the filing of
an answer without raising jurisdictional defects.
Louisiana ex rel. Dept. of Transp. & Dev. v. Kition
Shipping Co., Ltd., CIV.A. 08-452-A-M2, 2009 WL 1664621,
at *4 (M.D. La. May 4, 2009), vacated in part, 653
F.Supp.2d 633 (M.D. La. 2009). “An appearance may also
arise by implication ‘from a defendant's seeking,
taking, or agreeing to some step or proceeding in the cause
beneficial to himself or detrimental to [the] plaintiff other
than one contesting only the jurisdiction or by reason of
some act or ...