United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
PULLIAM, UNITED STATES DISTRICT JUDGE
Court has under consideration Plaintiff's Motion for
Judgment by Default Against Defendant Ron Merritt (ECF No.
18) and his affidavit in support (ECF No. 19). For the
reasons that follow, the Court denies the motion.
filed his Original Complaint (ECF No. 12) against three
individual defendants, including Ron Merritt, on July 3,
2019. Within that pleading, he explained that (1) he has
confirmed information that Merritt lives in Charlotte, North
Carolina; (2) Merritt is now employed by Spectrio as Chief
Financial Officer; and (3) “[t]hus, the only address
then known to the plaintiff to have Defendant Merritt served
with Summon & the Original Complaint is” at a
Florida address for Spectrio. Using that address provided by
Plaintiff, the United States Marshals Service certified that
Merritt was served on August 5, 2019, either by certified
mail or by leaving with a person of suitable age and
discretion at that address. See ECF No. 21.
August 12, 2019, before any defendant appeared in this
action, Plaintiff filed a First Amended Complaint (ECF No.
15) in which he drops two defendants from the action. Based
upon that amended complaint, Plaintiff sues only San Antonio
Express-News and Ron Merritt. Plaintiff filed this amendment as
a matter of course in accordance with Fed.R.Civ.P. 15(a)(1)
and his certificate of service indicates that he served
Merritt with the amended pleading by mailing it to the same
Florida address on August 12, 2019.
filed his motion for default judgment on September 9, 2019.
In federal court, Fed.R.Civ.P. 55 governs entry of default
judgment. Under that rule, a three-step process applies for
obtaining a default judgment. N.Y. Life Ins. Co. v.
Brown, 84 F.3d 137, 141 (5th Cir. 1996). As an initial
matter, there must be an actual default, which “occurs
when a defendant has failed to plead or otherwise respond to
the complaint within the time required by the Federal
Rules.” Id.; accord Fed. R. Civ. P.
55(a). In general, a defendant must serve an answer or
otherwise respond “within 21 days after being served
with the summons or complaint.” Fed.R.Civ.P.
12(a)(1)(A)(i). However, the filing of an amended pleading
alters the response time as set out in Fed.R.Civ.P. 15(a)(3).
Next, there must be an actual entry of default by the clerk
under Rule 55(a), which occurs “when the default is
established by affidavit or otherwise.” N.Y. Life
Ins. Co., 84 F.3d at 141. And finally, once there is an
entry of default, a “plaintiff may apply for a judgment
based on such default.” Id.
are “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) (citation omitted). Whether a court enters
default judgment is committed to its sound discretion.
Id. Entry of a default judgment is “a drastic
remedy, not favored by the Federal Rules and resorted to by
the courts only in extreme situations.” Sun Bank of
Ocala v. Pelican Homestead & Sav. Ass'n, 874
F.2d 274, 276 (5th Cir. 1989).
on the information before it, the Court has substantial
concerns about whether the address Plaintiff provided for
Defendant Merritt is sufficient to obtain valid service of
process upon him. It is Plaintiff's responsibility to
provide an adequate address to serve each defendant. See
Morris v. Copart, No. 4:15-CV-724, 2016 WL 6608874, at
*2 (E.D. Tex. Nov. 9, 2016); Clark v. ASC Mortg.,
No. 3:14-CV-4236-M, 2015 WL 3632562, at *1 (N.D. Tex. June
10, 2015) (accepting recommendation of Mag. J.); Gonzalez
v. Maneevese, No. EP-12-CV-191-FM-RFC, 2013 WL 12099978,
at *1 n.3 (W.D. Tex. June 12, 2013) (recommendation of Mag.
J.) accepted by 2013 WL 12103081 (W.D. Tex. June 27,
2013), aff'd, 574 Fed.Appx. 347 (5th Cir. 2014)
those concerns aside, service upon an individual like Merritt
is governed by Fed.R.Civ.P. 4(e). That rule provides that an
individual may be served in two ways: (1) as provided for
under the law of the state in which the district court is
located, i.e., Texas, or (2) by any of the three methods set
out in the federal rule, i.e., (A) “delivering a copy
of the summons and of the complaint to the individual
personally, ” (B) leaving copies of such documents
“at the individual's dwelling or usual place of
abode with someone of suitable age and discretion who resides
there, ” or (C) delivering a copy of the documents to
an authorized agent.
the three federal methods were used in this case. Because
Plaintiff did not provide a home address for Merritt, the
Marshals Service could not utilize the second federal option.
Nor did Plaintiff identify any authorized agent who could
receive service on behalf of Merritt. And the Marshals did
not deliver the documents to Merritt personally. Utilizing
registered or certified mail is not equivalent to delivering
documents to an individual personally. Peters v. United
States, 9 F.3d 344, 345 (5th Cir. 1993) (per curiam)
(addressing similar delivery requirement). Consequently, the
Court must look to Texas law to determine whether Merritt has
been properly served.
prior court authorization, Texas law provides only two
methods of service: (1) in person delivery and (2) mailing by
registered or certified mail with “return receipt
requested.” Tex.R.Civ.P. 106(a). Texas also requires
process servers to “complete a return of service,
” which must contain various information, including
what was served, who was served, and the address and date of
service. Tex.R.Civ.P. 107(a)-(b). And when service is
“by registered or certified mail as authorized by Rule
106, the return by the officer or authorized person must also
contain the return receipt with the addressee's
signature.” Tex.R.Civ.P. 107(c).
the Marshals Service, Plaintiff attempted service by
registered or certified mail. But the return of service does
not provide all information needed for the Court to determine
whether Merritt was properly served. The return indicates
that service was by certified mail to the address provided by
Plaintiff and attaches a USPS Tracking page which states:
“Your item was delivered to an individual at the
address at 1:10 pm on August 5, 2019, in OLDSMAR, FL
34677.” See ECF No. 21. Notably, the return of
service contains nothing signed by the addressee, i.e.,
Merritt. It thus does not comply with Texas law.
these reasons, Plaintiff has not shown that Merritt was
“in default at the time he moved for entry of default
by showing that [Merritt] was properly served with a summons
and the complaint prior to moving for entry of
default.” See Williams v. Waste Mgmt., Inc.,
No. 3:16-CV-2943-L-BN, 2017 WL 4570717, at *2 (N.D. Tex.
Sept. 7, 2017) (recommendation of Mag. J.) accepted
by 2017 WL 4548474 (N.D. Tex. Oct. 12, 2017). A
defendant does not become “susceptible to
default” until the plaintiff effects service upon that
defendant. Rogers v. Hartford Life & Acc. Ins.
Co., 167 F.3d 933, 937 (5th Cir. 1999). Accordingly, a
plaintiff “cannot obtain a default judgment”
until the defendant has been properly served. Thompson v.
Johnson, 348 Fed.Appx. 919, 923 (5th Cir. 2009) (per
the information before it, the Court does not find Merritt to
be in default. Plaintiffs motion thus fails at the first step
of the three-step process. It also fails at the second step
because the clerk has made no entry of default. And, although
Plaintiff has moved for default judgment based upon a
perceived default by Merritt, he has not made such motion
based upon any entry of default under Rule 55(a). The Court