United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
the Court is the plaintiff's Notice of Motion and
Motion for Default Judgment for Second Failure of Defendant
to Timely Answer Plaintiff's Motions, filed August
5, 2019 (doc. 41). Based on the relevant filings and
applicable law, the plaintiff's motion for default
judgment should be DENIED.
Easterling (Plaintiff) sued U.S. National Bank Association
(Defendant) in Texas state court on August 24, 2018, alleging
debt collection violations in connection with his mortgage.
(See doc. 1-1 at 2-14.) Defendant removed the case
to federal court on September 24, 2018. (See doc. 1
at 1.) According to the notice of removal, Defendant did not
file an answer in state court prior to removal. (See
doc. 1-4 at 3.) Defendant did not file an answer or otherwise
respond to the state petition within any of the time frames
provided by Fed.R.Civ.P. 81(c)(2).
filed an amended complaint on October 26, 2018, and
additional attachments on October 29, 2018. (See
docs. 5, 6.) Defendant again failed to file an answer or
otherwise respond to the amended complaint. Because of
Defendant's failure to answer or respond to either
complaint, on January 7, 2019, Plaintiff was ordered to show
cause in writing by January 21, 2019, why he had not
requested entry of default and moved for a default judgment
against Defendant, unless it filed an answer or response
prior to that date. (See doc. 7.)
January 11, 2019, Plaintiff requested entry of default and
default judgment, and on January 14, 2019, the Clerk entered
default against Defendant. (See docs. 8, 9.) On
January 15, 2019, Defendant moved to strike the entry of
default as premature. (See doc. 11.) It explained
that based on an order aggregating this case and a prior
related lawsuit by Plaintiff before the same magistrate
judge, it believed that the court had consolidated the two
cases, and it did not file an answer because it had a motion
to dismiss pending in the prior lawsuit. (See id. at
1-2.) Defendant filed its answer to Plaintiff's amended
complaint on January 16, 2019. (See doc. 13.) On
January 16, 2019, it was recommended that the motion to
strike be construed as a motion to set aside the entry of
default and granted, and that Plaintiff's motion for
default judgment be denied. (See doc. 14.)
January 22, 2019, Plaintiff again moved for entry of default
and for default judgment. (See doc. 16.) The Clerk
declined to enter default because a responsive pleading had
been filed, and it was recommended on January 24, 2019, that
the motion for default judgment be denied. (See doc.
17.) The recommendations that the entry of default be set
aside and that the motions for default judgment be denied
were adopted on January 31, 2019, and February 8, 2019.
(See docs. 21, 24.)
April 22, 2019, Defendant moved for summary judgment.
(See doc. 25.) After obtaining an extension of time
to respond but missing it, Plaintiff ultimately filed his
objection to the summary judgment motion on June 21, 2019.
(See docs. 29, 30, 36.) On July 3, 2019, he again
requested entry of default against Defendant, and the Clerk
again declined. (See doc. 37.) Plaintiff now seeks
entry of default judgment based on Defendant's failure to
respond to his objection. (See doc. 41 at 4.)
MOTION FOR DEFAULT JUDGMENT
allows a default judgment to be entered against a party and
provides the applicable procedure. See Fed. R. Civ.
P. 55. There is a three-step process for securing a default
judgment. See New York 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
shown “by affidavit or otherwise.” See
id.; New York Life Ins. Co., 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); New York Life Ins. Co., 84 F.3d at 141.
judgments are a drastic remedy, not favored by the Federal
Rules and resorted to by courts only in extreme
situations.” Lewis v. Lynn, 236 F.3d 766, 767
(5th Cir. 2001) (citation and internal quotation marks
omitted). Moreover, “a party is not entitled to a
default judgment as a matter of right, even where the
defendant is technically in default.” Id.
(quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th
Cir. 1996) (per curiam)). Courts may consider “the
amount of money at stake, the possibility of a dispute
concerning material facts, and the strong policy favoring
decisions on the merits.” Stelax Indus., Ltd.,
2004 WL 733844, at *11 (N.D. Tex. Mar. 25, 2004) (citation
omitted). The decision to enter a judgment by default is
has defended the case by filing a motion to set aside the
default, which has been granted, as well as an answer. It has
also now moved for summary judgment. Plaintiff therefore
cannot satisfy the first requirement for a default judgment,
e.g., failure “to plead or otherwise defend.”
Fed.R.Civ.P. 55(a); New York Life Ins. Co., 84 F.3d
at 141. Nor can he satisfy the second requirement because the
Clerk of Court has declined to re-enter default based on the
filing of a responsive pleading. 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 of Ocala v. Pelican Homestead
& Sav. Ass'n , 874 F.2d 274, 276 (5th Cir.
1989). Finally, the failure to respond to Plaintiff s
objection to Defendant's summary judgment motion is also
not a basis for entry of default judgment. Like his first two
motions, his third motion for default judgment is subject to