United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION & ORDER
T. BERTON, UNITED STATES MAGISTRATE JUDGE.
day, the Court considered the “Motion for Decree of
Default and Liability Judgment as to Defendant Stanton
Nelson” (“Motion”) (ECF. No. 52) filed by
Plaintiff Argent Holdings, LLC (“Argent”) on
November 22, 2017. For the reasons set forth below,
Argent's Motion is DENIED.
28, 2017, Argent filed suit against Defendants East El Paso
Physicians' Medical Center, LLC d/b/a Foundation Surgical
Hospital of El Paso, Foundation Surgical Hospital Holdings
LLC, Randstad Professionals US, LLC d/b/a Tatum, Stanton
Nelson, and Justin Bynum (collectively,
“Defendants”). (ECF. No 1). Thereafter, on August
4, 2017, Argent filed its Amended Complaint against
Defendants. (ECF. No. 15). Argent asserts various causes of
action related to a “Receivables Purchase and Sale
Agreement” between Foundation Surgical Hospital of El
Paso and Argent for the purchase of medical debt.
(Id.). Argent seeks to impose joint and several
liability against all Defendants. (Id.).
Nelson was served with the Complaint and Amended Complaint on
July 17, 2017 and August 4, 2017, respectively. (See
ECF. Nos. 11, 15). Despite this, Defendant Nelson has failed
to appear or file a responsive pleading. Consequently, Argent
seeks an entry of default judgment against Defendant Nelson
pursuant to Rule 55(b)(2). (ECF. No. 52).
subsequent to the filing of Argent's Motion, Defendant
Nelson appeared and filed a Motion to Dismiss. (ECF. No. 53).
Rule of Civil Procedure 55 governs entry of default judgment.
Initially, the clerk of court must enter default against a
defendant, if the defendant fails to plead or otherwise
defend and the plaintiff shows that failure by affidavit or
otherwise. See Fed. R. Civ. P. 55(a). Thereafter,
the plaintiff may move the court for a default judgment.
See Fed. R. Civ. P. 55(b); see also N.Y.Life
Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996)
(“After defendant's default has been
entered, plaintiff may apply for a judgment based on such
default.”) (emphasis added). Consequently,
“[w]ithout a prior entry of default [by the clerk of
court], there is no basis for entry of a default
judgment.” Richardson v. Avery, 2016 U.S.
Dist. LEXIS 182160, at *4-5 (N.D. Tex. 2016); Shakir v.
Chase Home Fin., 2011 U.S. Dist. LEXIS 85103, at *3 n.4
(N.D. Miss. 2011). Here, Argent has not moved the clerk of
court for an entry of default and no default has been
entered. Moreover, Defendant Nelson has now appeared by
filing a Motion to Dismiss, and Courts should generally
resolve disputes on the merits. Harper Macleod Solicitors
v. Keaty & Keaty, 260 F.3d 389, 393 (5th Cir. 2001)
(collecting cases) (“Federal courts generally disfavor
default judgments, preferring to resolve disputes according
to their merits.”). Accordingly, an entry of default
judgment is inappropriate.
critically, it is improper to enter a default judgment
against one defendant when multiple defendants are
“similarly situated” because of the risk of
inconsistent judgments. In re First T.D. & Inv.
Inc., 253 F.3d 520, 532 (9th Cir. 2001); Gulf Coast
Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499,
1512 (11th Cir. 1984); see also Frow v. De La Vega,
82 U.S. 552 (1872). By its nature, joint and several
liability seeks to have each defendant bear the
responsibility for the entire obligation, and thus, could
create inconsistent judgments if the non-defaulting
defendants prevail. See generally, Liability,
Black's Law Dictionary (10th ed. 2014). Consequently, the
entry of default judgment against one, but not all,
defendants is inappropriate when joint and several liability
is at issue. See e.g., Travelers Cas. & Sur.
Co. of Am. v. Nelms, 2016 U.S. Dist. LEXIS 80573, at *2
(N.D. Miss. 2016) (collecting cases); Allstate Prop.
& Cas. Ins. Co. v. Moore, 2014 U.S. Dist. LEXIS
48949, at *4 (S.D.Miss. 2014); Underwriters at Lloyds,
Syndicate 4242 v. Turtle Creek P'ship, Ltd, 2010
U.S. Dist. LEXIS 37639, at *6 (S.D. Tex. 2010); see
also 10A Charles Alan Wright, et al., Federal Practice
and Procedure § 2690 (3d ed. 1998) (collecting cases)
(“As a general rule , when one of several defendants
who is alleged to be jointly and severally liable defaults,
judgment should not be entered against that defendant until
the matter has been adjudicated with regard to all
defendants, or all defendants have defaulted.”). Here,
Argent seeks to impose joint and several liability on all
Defendants. (ECF. No. 15). Based on this theory of liability,
an entry of default judgment creates the possibility of
conflicting judgments should the remaining Defendants
prevail.Accordingly, default judgment is
on the foregoing, IT IS HEREBY ORDERED that
Argent's “Motion for Decree of Default and
Liability Judgment as to Defendant Stanton Nelson”
(ECF. No. 52) is DENIED.
 The Court expresses no opinion on the
merits of the ...