United States District Court, S.D. Texas, Houston Division
MEMORANDUM, OPINION, ORDER AND FINAL
H. MILLER, SENIOR UNITED STATES DISTRICT JUDGE
before the court is a motion for default judgment filed by
plaintiff Eric Senegal against defendant TAS Foods, LLC
(“TAS”). Dkt. 34. TAS has not responded to the
motion. Having considered the motion and applicable law, the
court is of the opinion that the motion (Dkt. 34) should be
2016, Senegal and three other people were hired to work at a
Kentucky Fried Chicken location. Dkt. 1 at 2. However,
Senegal was never given a shift and never began working.
Id. Later, “other employees” informed
Senegal that “the manager had referred to him as a
fa-ot and said he needed to change his voice.”
sued Yum! Brands, Inc. (“Yum! Brands”) and TAS
under Title VII of the Civil Rights Act of 1964, alleging
that the defendants are “joint employers” of the
KFC where Senegal was hired. Id. Senegal contends
that the KFC manager “did not want Senegal, a gay male,
to work at the restaurant because of Senegal's sexual
orientation and/or because of expectations for Senegal to act
as a stereotypical male.” Id.
March 20, 2019, Senegal filed his First Amended Complaint.
Dkt. 29. The complaint dropped Senegal's claims against
Yum! Brands, leaving TAS Foods as the sole defendant.
Id. TAS was eventually served with the First Amended
Complaint on April 12, 2019, via first class mail and email.
Dkt. 33. TAS failed to file an answer or responsive pleading
to the First Amended Complaint prior to the May 3, 2019
Rule 55(b)(2), a party may apply for the court to enter a
default judgment. These rules “are designed for the
just, speedy, and inexpensive disposition of cases on their
merits, not for the termination of litigation by procedural
maneuver. Default judgments are a drastic remedy, not favored
by the Federal Rules and resorted to by courts only in
extreme situations.” Sun Bank of Ocala v. Pelican
Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th
default judgment “must be ‘supported by
well-pleaded allegations' and must have ‘a
sufficient basis in the pleadings.'” Wooten v.
McDonald Transit Assoc., Inc., 788 F.3d 490, 498 (5th
Cir. 2015) (quoting Nishimatsu Constr. Co. v. Hou.
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
The well-pleaded allegations in the complaint are assumed to
be true, except regarding damages. Nishimatsu, 515
F.2d at 1206; see also United States v. Shipco Gen.,
Inc., 814 F.2d 1011, 1014 (5th Cir. 1987). However,
“the defendant is not held to admit facts that are not
well-pleaded or to admit conclusions of law.”
Nishimatsu, 515 F.2d at 1206.
may not enter a default judgment against a minor or
incompetent person unless the person is represented by a
general guardian, conservator, or other fiduciary.
Fed.R.Civ.P. 55(b). Additionally, a court may enter a default
judgment only after the plaintiff files an affidavit
regarding the defendant's military status. 50 U.S.C.
§ 3931. Local Rule 5.5 requires a motion for default
judgment to be served upon the defendant via certified mail,
return receipt requested. S.D. Tex. L.R. 5.5.
served TAS with the First Amended Complaint on April 12,
2019, via first class mail and email. Dkt. 33. TAS never
filed an answer or responsive pleading. On May 9, 2019,
Senegal served the motion for default judgment on TAS via
certified mail, return receipt requested, as required by the
Local Rules. Dkt. 34. TAS failed to file an answer or
responsive pleading prior to the May 30, 2019 deadline.
Senegal has also shown that TAS is not a minor, incompetent
person, or in the military. Id. Because TAS has
failed to plead or otherwise defend, the court may: (1) enter
default against TAS; (2) accept all well-pleaded facts in the
complaint as true; and (3) if he has stated a valid claim,
award Senegal the relief he seeks. Nishimatsu, 515
F.2d at 1206.
Sexual Orientation Claims
initial complaint against TAS alleged sexual orientation
discrimination. Dkt. 1. However, the court dismissed those
claims (Dkt. 25) because Title VII does not protect against
sexual orientation discrimination in the Fifth Circuit.
Senegal v. Yum! Brands, Inc., No. H-18-1734, 2019 WL
448943, at *5 (S.D. Tex. Feb. 5, 2019)(Miller, J); see
also Brandon v. Sage Corp., 808 F.3d 266, 270 n.2 (5th
Cir. 2015) (“Title VII in plain terms does not cover
‘sexual orientation.'”). Thus, to the extent