United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES DISTRICT JUDGE.
Motion for Default Judgment Against Defendants Brooklyn
Urgent Care, PLLC, Brooklyn UC Administrative
Services, LLC, Dr. Ashraf Salem and Yasser Salem,
Doc. 11, was referred to the undersigned United
States magistrate judge for findings and a recommended
disposition. Doc. 13. On July 9, 2019, an evidentiary hearing
was held on issues of damages and attorneys' fees. Doc.
15; Doc. 17. Upon consideration of the evidence, pleadings,
and applicable law, Plaintiff's motion for default
judgment should be GRANTED as to Defendants
Yasser Salem and Brooklyn Urgent Care, PLLC (collectively
“Defendants”), and judgment reserved as to the
action arises out of an agreement between Plaintiff and
Defendant Brooklyn Urgent Care, under which Plaintiff
contends it provided services for which Brooklyn Urgent Care
failed to pay. Doc. 1 at 4-5. Plaintiff filed its
Complaint on October 10, 2018, asserting claims
against Brooklyn Urgent Care, Brooklyn UC Administrative
Services, Ashraf Salem, and Yasser Salem (collectively
“all Defendants”) for breach of contract, sworn
suit on account and quantum meruit, and also seeking
attorneys' fees and costs as well as pre- and
post-judgment interest. Doc. 1 at 1-3, 6-8. All
Defendants were served on October 15, 2018 or October 16,
2018, but neither Defendant answered or entered an appearance
in this case. Doc. 5; Doc. 6; Doc.
7; Doc. 8. The Clerk of Court entered a default
as to all Defendants on February 21, 2019. Doc. 12.
Rule of Civil Procedure 55 governs the entry of a
default judgment. Fed. R. Civ. P. 55(b)(2). A
default judgment is available as long as the plaintiff
(1) defendant has been served with the summons and complaint
and default was entered for its failure to appear; (2)
defendant is neither a minor nor an incompetent person; (3)
defendant is not in military service or not otherwise subject
to the Soldiers and Sailors Relief Act of 1940; and (4) if
defendant has appeared in the action, that defendant was
provided with notice of the application for default judgment
at least three days prior to the hearing.
Arch Ins. Co. v. WM Masters & Assocs., Inc., No.
3:12-CV-2092-M, 2013 WL 145502, at *2 (N.D. Tex. Jan. 14,
2013) (Lynn, J.).
ruling on a motion for default judgment, the Court considers:
(1) whether material issues of fact are at issue, (2) whether
there has been substantial prejudice, (3) whether grounds for
default are clearly established, (4) whether default was
caused by a good faith mistake or excusable neglect, (5)
harshness of default judgment, and (6) whether the Court
would feel obligated to set aside a default on the
defendants' motion. Lindsey v. Prive Corp., 161
F.3d 886, 893 (5th Cir. 1998).
Plaintiff is entitled to default judgment.
has satisfied the requisites for entry of a default judgment
because: (1) all Defendants were served, none appeared, and a
default was entered for their failure to appear, Doc.
12; (2) Brooklyn Urgent Care, PLLC, as an entity, is
“neither a minor nor an incompetent person, nor can it
be active in military service, ” Arch Ins.
Co., 2013 WL 145502, at *3, and (3) Yasser Salem is
neither a minor nor incompetent, nor is Yasser Salem enrolled
in active military service, Doc. 11 at 3, Doc. 11-6 at
the relevant factors favor the entry of a default judgment.
First, Defendants have “not filed any responsive
pleadings or otherwise appeared in this case, and thus ha[ve]
not contested any facts presented in Plaintiff's
Complaint.” Arch Ins. Co., 2013 WL 145502, at
*3. Second, Defendants' “failure to respond to
Plaintiff's Complaint threatens to bring the adversary
process to a halt, effectively prejudicing Plaintiff's
interests in pursuing its rights afforded by law.”
Id.Third, “the grounds for default are
‘clearly established,' as Defendants have not
responded to the summons and complaint” for more than
eight months. Holladay v. OTA Training, LLC, No.
3:14-CV-0519-B, 2015 WL 5916440, at *2 (N.D. Tex. Oct. 8,
2015) (Boyle, J.). Fourth, “there is no evidence before
the Court ‘that a good faith mistake or excusable
neglect' caused the default.” Arch Ins.
Co., 2013 WL 145502, at *3. Fifth, Defendants have
“had over six months to answer or otherwise respond to
Plaintiff's Complaint, mitigating the harshness of
default judgment.” Id. Finally, “based
on the facts known to the Court, there is no ‘good
cause' for which it would be obligated to set aside the
default if later challenged by [Defendants.]”
notwithstanding, “[t]here must be a sufficient basis in
the pleadings for the [default] judgment [to be]
entered.” Arch Ins. Co., 2013 WL 145502, at
*3. The Court finds that Plaintiff's pleadings are
sufficient. Under Texas law, the elements of a breach of
contract claim are: (1) the existence of a valid contract;
(2) performance or tendered performance by the plaintiff; (3)
breach by the defendants; and (4) damages sustained as a
result. Innova Hosp. San Antonio, L.P. v. Blue Cross and
Blue Shield of Georgia, Inc.,892 F.3d 719, 731 (5th
Cir. 2018). The elements for a suit on sworn account under
Texas law are that: (1) there was a sale and delivery of
merchandise or performance of services; (2) the amount of the
account is just, i.e., the prices were charged in
accordance with an agreement, or in the absence of an
agreement, they are usual, ...