# Gass v. Nguyen

> District Court, W.D. North Carolina · February 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10255532

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** February 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:19-cv-00197-RJC-DCK

SEMARIA GASS, )
)
Plaintiff, )
)
v. )
) ORDER
NGOC NGUYEN, CHRISTY HUONG, VI )
TRUONG, and TRAM NDO, )
)
Defendants. )
)

THIS MATTER comes before the Court on Plaintiff’s Motions for Default
Judgment. (Doc. Nos. 14 to 15 and 19 to 20.)
I. BACKGROUND
On April 23, 2019, Plaintiff filed a pro se Complaint against Defendants Ngoc
Nguyen (“Nguyen”), Christy Huong (“Huong”), Vi Truong (“Truong”), and Tram Ndo
(“Ndo”). (Doc. No. 1.) The Complaint asserts a claim for racial discrimination under
Title VII of the Civil Rights Act of 1964, alleging that Plaintiff was terminated from
four different nail salons because of her race.
On July 9, 2019, counsel for Nguyen and Ndo entered an appearance in this
action and filed separate motions to dismiss on their behalves. (Doc. Nos. 6 to 7 and
9 to 10.) On July 11, 2019, Plaintiff filed two Motions for Default Judgment as to
Huong and Truong. (Doc. Nos. 14 to 15.) On July 29, 2019, Huong filed an Answer
to the Complaint. (Doc. No. 18.) On July 30, 2019, Plaintiff filed two additional
Motions for Default Judgment as to Ndo and Nguyen. (Doc. Nos. 19 to 20.)
II. STANDARD OF REVIEW
Rule 55 of the Federal Rules of Civil Procedure governs Plaintiff’s Motions for
Default Judgment. “Rule 55 sets forth a two-step process for obtaining a default

judgment.” Brown v. Prime Star Grp., Inc., No. 3:12-cv-165, 2012 U.S. Dist. LEXIS
141495, at *5 (W.D.N.C. Sept. 30, 2012). A plaintiff must first seek an entry of default
under Rule 55(a). L & M Cos. v. Biggers III Produce, Inc., No. 3:08-cv-309, 2010 U.S.
Dist. LEXIS 46907, at *14 (W.D.N.C. Apr. 9, 2010). Rule 55(a) states that “[w]hen a
party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.” Fed. R. Civ. P. 55(a). “Upon the entry of default, the

defaulted party is deemed to have admitted all well-pleaded allegations of fact
contained in the complaint.” Brown, 2012 U.S. Dist. LEXIS 141495, at *4.
“After the clerk has entered a default, the plaintiff may seek a default
judgment.” Silvers v. Iredell Cty. Dep’t of Soc. Servs., No. 5:15-cv-00083, 2016 U.S.
Dist. LEXIS 13865, at *9 (W.D.N.C. Feb. 3, 2016). Default judgment is proper “only
if the well-pleaded factual allegations in a complaint both establish a valid cause of

action and entitle the plaintiff to an award of damages or other relief.” i play. Inc. v.
D. Catton Enter., LLC, No. 1:12-cv-22, 2015 U.S. Dist. LEXIS 29870, at *6 (W.D.N.C.
Mar. 10, 2015). In so deciding, courts in this district apply the standard used to
evaluate a Rule 12(b)(6) motion to dismiss, and “a pleading that offers mere ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Silvers, 2016 U.S. Dist. LEXIS 13865, at *18–19 (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
“If the Court determines that liability is established, it must then determine
the appropriate amount of damages.” Bogopa Serv. Corp. v. Shulga, No. 3:08-cv-365,

2011 U.S. Dist. LEXIS 17408, at *4 (W.D.N.C. Feb. 8, 2011). “The court must make
an independent determination regarding damages, and cannot accept as true factual
allegations of damages.” EEOC v. Carter Behavior Health Servs., No. 4:09-cv-122,
2011 U.S. Dist. LEXIS 129493, at *9–10 (E.D.N.C. Oct. 7, 2011). “[A] court may enter
a default judgment as to damages with or without a hearing. As long as there is an
adequate evidentiary basis in the record for an award of damages, the Court may
make such a determination without a hearing.” Bogopa Serv. Corp., 2011 U.S. Dist.

LEXIS 17408, at *5 (citation omitted).
III. DISCUSSION
Plaintiff has not obtained an entry of default as to any Defendant; however,
entry of default is not appropriate in this case. Default may be entered against a
defendant only when the defendant has failed to plead or otherwise defend. Fed. R.
Civ. P. 55(a). Here, three of the four Defendants have pleaded or otherwise defended

against this action. Nguyen and Ndo retained counsel who filed notices of appearance
on their behalves on July 9, 2019. That same day, Nguyen and Ndo filed motions to
dismiss Plaintiff’s Complaint, which constitutes otherwise defending against the
action. Moseley v. Countrywide Home Loans, Inc., No. 7:09-cv-210-FL, 2010 U.S.
Dist. LEXIS 114164, at *4 (E.D.N.C. Oct. 25, 2010). Huong filed her Answer to
Plaintiff’s Complaint on July 29, 2019. As Huong, Nguyen, and Ndo have answered
or otherwise defended against Plaintiff’s Complaint, entry of default against these
defendants is not appropriate.
Entry of default is also not appropriate as to Truong. “[E]ffective service of

process on a defendant must be accomplished as a prerequisite for entry of default
against that defendant.” Henderson v. L.A. Cty., No. 5:13-cv-635, 2013 U.S. Dist.
LEXIS 170928, at *2–3 (E.D.N.C. Dec. 3, 2013) (quotation marks omitted). “This is
because a defendant’s duty to respond to a complaint only arises upon proper service
of process.” Hinson-Gribble v. United States Office of Pers. Mgmt., No. 5:16-cv-00070,
2018 U.S. Dist. LEXIS 142561, at *5 (E.D.N.C. Aug. 22, 2018). “Thus, plaintiff must
show, by affidavit or otherwise, that proper service of process has been effected before

default may be entered.” Henderson, 2013 U.S. Dist. LEXIS 170928, at *3; see also
Fed. R. Civ. P. 4( )(1) (“Unless service is waived, proof of service must be made to the
court.”). “Except where service is made by a United States marshal or deputy
marshal, proof of service must be made to the court by the server’s affidavit.” Hinson-
Gribble, 2018 U.S. Dist. LEXIS 142561, at *5 (citing Fed. R. Civ. P. 4( )(1)). Under
Rule 4, “[a] summons must be served with a copy of the complaint.” Fed. R. Civ. P.

4(c)(1).
Here, Plaintiff has failed to prove proper service of process on Truong.
Plaintiff’s Motion for Default Judgment against Truong merely states Plaintiff
“would like to request a default judgment and full favor in [her] discrimination
lawsuit against Vi Truong.” (Doc. No. 15.) Although Plaintiff submitted proof of
service of the summons on Truong, (Doc. No. 5, at 2), there is no evidence that
Plaintiff properly served a copy of the Complaint on Truong as required by Rule 4.
Even if Plaintiff had established proper service of process on Truong, default
judgment would not be appropriate. As stated above, default judgment is proper “only

if the well-pleaded factual allegations in a complaint both establish a valid cause of
action and entitle the plaintiff to an award of damages or other relief.” i play. Inc.,
2015 U.S. Dist. LEXIS 29870, at *6. In determining whether a complaint establishes
a valid cause of action, courts apply the standard applicable to a Rule 12(b)(6) motion
to dismiss. Silvers, 2016 U.S. Dist. LEXIS 13865, at *18–19.
Plaintiff brings a claim for racial discrimination under Title VII, alleging that
Truong terminated Plaintiff’s employment at a nail salon because of her race. Title

VII makes it unlawful for an employer to discharge an employee or otherwise
discriminate against an employee “with respect to his compensation, terms,
conditions, or privileges of employment” because of the employee’s race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). A claim for race-based
discriminatory discharge under Title VII requires plaintiff to prove that she was
discharged because of her race. Wall v. City of Durham, 169 F. Supp. 2d 466, 473–74

(M.D.N.C. 2001). A plaintiff can prove such racial discrimination with direct evidence
of discrimination or with circumstantial evidence under the burden-shifting
framework established by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Paris v. ARC/Davidson Cty., Inc., 307 F. Supp. 2d 743, 753
(M.D.N.C. 2004). Direct evidence includes “evidence of conduct or statements that
both reflect directly the alleged discriminatory attitude and that bear directly on the
contested employment decision.” Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d
277, 284–85 (4th Cir. 2004). In the absence of direct evidence, plaintiff may proceed
under the McDonnell Douglas framework, which requires plaintiff to first establish a

prima facie case of racial discrimination. Wall, 169 F. Supp. 2d at 473. To establish
a prima facie case of racial discrimination, plaintiff must prove “(1) membership in a
protected class; (2) satisfactory job performance; (3) adverse employment action; and
(4) different treatment from similarly situated employees outside the protected class.”
Emami v. Bolden, 241 F. Supp. 3d 673, 679 (E.D. Va. 2017). At the motion to dismiss
stage, plaintiff must allege sufficient facts to allow the Court to find either that
plaintiff pleaded a direct case or that plaintiff pleaded a prima facie case. Hinton v.

Va. Union Univ., 185 F. Supp. 3d 807, 818 (E.D. Va. 2016).
Here, the Complaint lacks many facts, but the factual allegations it contains
are insufficient to support a plausible claim for racial discrimination. Plaintiff alleges
that Truong “fired [her] because one of [Truong’s] original clients preferred
[Plaintiff’s] service so [Truong] fired [Plaintiff] in front of client and told client to leave
as well.” (Doc. No. 1, at 5.) Plaintiff further alleges that a recent employee was let

go for the same reason—a client requested the employee over Truong. (Doc. No. 1, at
5.) These allegations suggest non-discriminatory reasons for Truong’s employment
decision. The Complaint lacks factual allegations to support a plausible claim for
race-based discrimination. Therefore, even if Plaintiff had proven effective service of
process on Truong, default judgment would not be appropriate.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff's Motions for Default Judgment,
(Doc. Nos. 14 to 15 and 19 to 20), are DENIED.

Signed: February 21, 2020

Robert J. Conrad, Jr.
United States District Judge “ee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10255532. Public record. Not legal advice.