United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order No. 3-251, this case has been referred
for full case management. Before the Court is the
plaintiff's Motion for Default Judgment, filed
April 8, 2019 (doc. 20). Based on the relevant filings and
applicable law, the motion should be DENIED.
December 27, 2018, the plaintiff filed this pro se
employment discrimination action against the defendant and
moved for leave to proceed in forma pauperis (IFP).
(See docs. 3, 5.) She was granted IFP status, and
after judicial screening was completed, a summons was issued
for the federal defendant on January 15, 2019. (See
docs. 6-11.) The defendant was served through the United
States Attorney on February 7, 2019. (See doc. 17.)
On April 8, 2019, the defendant moved to dismiss the
complaint. (See doc. 21.) That same day, the
plaintiff moved for default judgment. (See doc. 20.)
plaintiff moves for entry of default judgment pursuant to
Fed.R.Civ.P. 55 based on the defendant's alleged failure
to timely file an answer to her complaint.
sets forth the conditions under which default may be entered
against a party, as well as the procedure to seek the entry
of default judgment. There is a three-step process for
securing a default judgment. See N.Y. Life Ins. Co. v.
Brown, 84 F.3d 137, 141 (5th Cir. 1996). First a default
occurs when a party “has failed to plead or otherwise
defend” against an action. Fed.R.Civ.P. 55(a). Next, an
entry of default must be entered by the clerk when the
default is established “by affidavit or
otherwise”. See id.; N.Y. Life Ins.,
84 F.3d at 141. Third, a party may apply to the clerk or the
court for a default judgment after an entry of default.
Fed.R.Civ.P. 55(b); N.Y. Life Ins., 84 F.3d at 141.
the defendant has defended the case by timely filing a motion
to dismiss within 60 days of the date of service on the
United States Attorney. See Rogers v. Barnhart, 365
F.Supp.2d 803, 808 (S.D. Tex. 2004) (citing Sun Bank of
Ocala v. Pelican Homestead & Sav. Ass'n, 874
F.2d 274, 277 (5th Cir. 1989) (“the filing of a motion
to dismiss is normally considered to constitute an
appearance”)); Fed.R.Civ.P. 12(a)(2) (a federal agency
must serve an answer to a complaint within 60 days of service
on the United States Attorney). Because the defendant timely
appeared and defended the case, there is no basis for the
Clerk of Court to enter a default under Rule 55(a), even if
the plaintiff had requested entry of default. Without a prior
entry of default, a party has no basis to seek a default
judgment. Moreover, “a party is not entitled to a
default judgment as a matter of right, even where the
defendant is technically in default.” Lewis v.
Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (quoting
Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996)).
“In fact, ‘[d]efault judgments are a drastic
remedy, not favored by the Federal Rules and resorted to by
courts only in extreme situations.'”
Lewis, 236 F.3d at 767 (quoting Sun Bank,
874 F.2d at 276).
the defendant has timely defended this action, and no default
has been entered, entry of default judgment is not warranted.
plaintiff's motion for default judgment should be
FOR SERVICE AND NOTICE OF RIGHT TO
of these findings, conclusions and recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of these findings, conclusions
and recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). In order to
be specific, an objection must identify the specific finding
or recommendation to which objection is made, state the basis
for the objection, and specify the place in the magistrate
judge's findings, conclusion and recommendation where the
disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before
the magistrate judge is not specific. Failure to file
specific written objections will bar the aggrieved party from
appealing the factual ...