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BHL Boresight, Inc. v. Geo-Steering Solutions, Inc.

United States District Court, S.D. Texas, Houston Division

April 19, 2017

BHL BORESIGHT, INC., et al, Plaintiffs,
GEO-STEERING SOLUTIONS, INC., et al, Defendants.



         Pending 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.

         I. Background

         Joy is 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.

         Although 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.

         On 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 by stating:

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.

         On 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 addressed herein.

         II. BHL's Motion for Default

         In its 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.

         Federal 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.

         Service 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 omitted).

         An 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 ...

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