Chay Jr v. Montiel

UNITED STATES DISTRICT COURT August 13, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

MCALLEN DIVISION

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EAZ CHAY JR,

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Plaintiff, § §

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VS. § CIVIL ACTION NO. 7:23-CV-206

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JOSE A. MONTIEL, et al., §

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Defendants.

REPORT AND RECOMMENDATION

Plaintiff Eaz Chay, Jr. filed this civil action pursuant to 42 U.S.C. § 1983, asserting various

violations of his civil rights. (Docket No. 1.) Pending before the Court are his “Motion for Entry

of Default Judgment” and “Default of Judgment,” which are essentially the same motion. (Docket

Nos. 15, 17.) Both motions are urged pursuant to Rule 55(b)(2) of the Federal Rules of Civil

Procedure. (Docket No. 15, at 1; Docket No. 17, at 1.) Defendants have filed a “Response in

Opposition to Plaintiff’s Motion for Default Judgment.” (Docket No. 22.) For the reasons that

follow, the undersigned recommends that Plaintiff’s “Motion for Entry of Default Judgment” and

“Default of Judgment” be denied.

I. BACKGROUND

On June 26, 2023, Plaintiff filed this § 1983 civil rights action. In his Complaint he alleges

that in August 2021, officers with the Pharr Police Department violated his civil rights when they

“intentionally [and] illegally” arrested him, and by assaulting him during the arrest. (Docket No.

1, at 4.) According to Plaintiff, as a result of the arrest he “sustained scars and permanent injuries

to both his knees, hands, shoulders and neck C-spine and body.” (Id. at 5.) As relief he seeks

“actual damages,” “compensatory damages,” and “punitive damages” in unspecified amounts.

(Id.)

“Plaintiff served the Defendants with the lawsuit [about] three months later on 9/14/23.”

(Docket No. 22, at 1 (citing Docket Nos. 5-7).) Several weeks later, on October 4, 2023, Plaintiff

filed an Amended Complaint, and according to him, he served the pleading to Jose F. Gonzalez,

the Chief of the Pharr Police Department.1 (See Docket No. 14.) Several days later, on October

10, 2023, Plaintiff filed the pending motion for entry of default judgment. (See Docket Nos. 15,

17.) Defendants concede that they “failed to timely appear and answer in this lawsuit.” (Docket

No. 22, at 1.) However, “Defendants have now appeared in the lawsuit and an Answer has since

been filed.” (Id.) Notwithstanding this, Plaintiff alleges that Defendants’ “default(s) was entered

on October 6, 2023.” (Docket No. 15-1, at 1; see also Docket No. 17, at 1 (also alleging that

“default [was] entered 10/10/2023”).)

Defendants responded to Plaintiff’s motions for default judgment, asserting that “none of

the conditions currently exist for either a default to be entered or for the entry of a default

judgment.” (Docket No. 22, at 2.) Specifically, Defendants argue that their failure to timely

answer was due to “excusable neglect,” that “Plaintiff makes no effort at all to show or claim

prejudice,” and that “they have meritorious defense to the claims.” (Id. at 4.) Plaintiff filed a

response to Defendants, arguing that default judgment is proper “based on defendants’

CONTINOUS failure to appear.” (Docket No. 24, at 2.) On March 20, 2024, the Court held a

hearing to address (among other things) Plaintiff’s pending motions for default judgment.

II. ANALYSIS

The Fifth Circuit has explained default in the following way:

1 Plaintiff has not named Jose F. Gonzalez as a defendant in this action. (See Docket Nos.

1, 11, 27.)

A default occurs when a defendant has failed to plead or otherwise respond to the

complaint within the time required by the Federal Rules. An entry of default is

what the clerk enters when the default is established by affidavit or otherwise. After

defendant's default has been entered, plaintiff may apply for a judgment based on

such default. This is a default judgment.

N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996) (citing FED. R. CIV. P. 55(a))

(emphases in original). “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 Cir. 1989). “A party is not entitled to a default judgment as a

matter of right, even where the defendant is technically in default.” Ganther v. Ingle, 75 F.3d 207,

212 (5th Cir. 1996); see also Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). “The Fifth Circuit

has explained that default judgment ‘puts competing policy interests at play’ and the balancing of

these interests ‘lies largely within the domain of the trial judge's discretion.’” Williams v. Licari,

692 F. Supp. 3d 647, 653–54 (E.D. Tex. 2023) (quoting Wooten v. McDonald Transit Assocs.,

Inc., 788 F.3d 490, 496 (5th Cir. 2015)).

Plaintiff’s motions seeking entry of default judgment are misplaced. As one Court has

explained:

[I]t is not clear whether Rule 55(a) regarding entry of default even applies here.

The rule addresses parties who “fail to plead or otherwise defend” and is silent as

to late pleadings. Here, there has not been a failure to plead or otherwise defend

but instead merely, at most, late-filed pleadings.

Quintana v. Lowe, No. 5:22-CV-706, 2023 WL 3077878, at *1 (W.D. Tex. Mar. 3, 2023). Here,

as in Quintana, “there has not been a failure to plead or otherwise defend but instead merely, at

most, late-filed pleadings.” Id. “Defendants assert that none of the conditions currently exist for

either a default to be entered or for the entry of a default judgment . . . [because] Defendants have

now answered the lawsuit and are thus defending against the action.” (Docket No. 22, at 2.) As

such, contrary to Plaintiff’s argument, Rule 55 does not appear to be applicable here.

In addition, “[i]t is certainly true that if a plaintiff amends his complaint, a defendant may

file a new responsive pleading because the amended complaint typically causes the original

pleading to be ‘of no legal effect.’” United States ex rel. Bias v. Tangipahoa Par. Sch. Bd., 816

F.3d 315, 322 (5th Cir. 2016) (quoting King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)). As

noted, Plaintiff filed his original complaint on June 26, 2023. (Docket No. 1.) Since then, he has

filed several amended pleadings. (See Docket Nos. 11, 27, 34.) As Defendants note, Plaintiff’s

amended pleadings have been filed without leave of the court.

In any event, Defendants have now “answered the lawsuit;” in fact, their responsive

pleadings have become more urgent. (See Docket Nos. 18-22, 29, 31, 37, 45, 47.) For example,

although 53 days passed from the date of service of Plaintiff’s original complaint to Defendant’s

answer (compare Docket Nos. 5-7, with Docket No. 21), the amount of time that passed from the

filing of Plaintiff’s amended complaint to Defendant’s answer was only 33 days (compare Docket

No. 11, with Docket No. 21). Similarly, Defendant filed its response to Plaintiff’s initial motion

for entry of default in 27 days. (See Docket Nos. 15, 22.) Finally, after Plaintiff filed his Amended

Complaint, Defendant filed motions to dismiss for failure to state a claim within two weeks. (See

Docket Nos. 27, 29, 31.) As Defendants put it, they are “thus defending against the action.”

(Docket No. 22, at 2.); see Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977) (the court found that

the parties’ responses were indicative of its desire not to abandon the litigation).

“Moreover, even if [Rule 55(a) regarding entry of default] were applicable in this context,

the Court may extend deadlines on a motion made after the deadline has expired, if the late party

failed to act timely because of ‘excusable neglect.’” Quintana, 2023 WL 3077878, at *1 (citing

FED. R. CIV. P. 6(b)(1)(B)). Defendants explain their failure to timely answer as follows:

In this case, it appears an answer was not filed simply by omission or

mistake in forwarding the lawsuit from Defendants/City to the City’s risk pool

TMLIRP, which would have immediately assigned counsel for Defendants. This

meets the “elastic” standard for excusable neglect. Further, Defendants have acted

promptly on this issue. 346 F.3d at 563. In this case, Defendants acted promptly to

answer as soon as the suit made its way to the City/Defendants’ risk pool and thus

to assigned counsel.

(Docket No. 22, at 4.) Having reviewed Defendants’ response, the undersigned finds the

explanation persuasive.

Further, even if the Clerk had entered a default here—which it has not—“a court may set

aside an entry of default for good cause.” Quintana, 2023 WL 3077878, at *2 (citing FED. R. CIV.

P. 55(c)). A default under these circumstances is inappropriate because any such default would

clearly meet this ‘good cause’ standard. In analyzing whether good cause is present, a court should

consider three factors: 1) the willfulness of the default, 2) the prejudice to the opposing party if the

default is set aside, and 3) whether the defending party has meritorious defenses. Id. (citing Lacy

v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000)).

As to the first factor, Defendants argue that their failure to timely answer was not willful,

rather, it was due to “excusable neglect.” (Docket No. 22, at 4.) As noted, the undersigned finds

their explanation persuasive. Further supporting their claim of “excusable neglect,” Defendants

have filed an answer to the complaint, a written response to the pending motion, and appeared

(through counsel of record) at the scheduling conference. These actions are consistent with their

claim of “excusable neglect.” See Mason, 562 F.2d at 345 (the court found that the parties

responses were indicative of its desire not to abandon the litigation).

Next, Plaintiff has failed to allege—let alone prove—that he has suffered prejudice due to

the delay in filing the answer. “There is no prejudice to the plaintiff where ‘the setting aside of

the default has done no harm to plaintiff except to require it to prove its case.’” Lacy, 227 F.3d at

293 (quoting Gen. Tel. Corp. v. Gen. Tel. Answering Serv., 277 F.2d 919, 921 (5th Cir. 1960)).

“[M]ere delay does not alone constitute prejudice.” Lacy, 227 F.3d at 293. “[T]he plaintiff must

show that the delay will result in the loss of evidence, increased difficulties in discovery, or greater

opportunities for fraud and collusion.” Id. (quoting Berthelsen v. Kane, 907 F.2d 617, 621 (5th

Cir. 1990)). Here, Plaintiff makes no mention of suffering prejudice of any kind in his motions

for entry of default. (See Docket Nos. 15, 17.) In fact, the only reference he makes to prejudice

is his statement that “DEFENDANTS failed to timely respond continuedly prejudicing the

PLAINTIFF.” (Docket No. 24, at 4 (emphasis in original).) However, this cursory statement does

not show anything other than “mere delay,” which is insufficient to prove prejudice.

Finally, as to the last element for the court to consider, “Defendants urge that they have

established that they have a meritorious defense to the claims.” (Docket No. 22, at 4.) To show a

meritorious defense, Defendant “need not prove that it will likely succeed on the merits.” iLife

Techs. Inc. v. Activecare, Inc., No. 3:12-CV-5161, 2013 WL 1943322, at *2 (N.D. Tex. May 10,

2013) (quoting Owens–Illinois, Inc. v. T & N Ltd., 191 F.R.D. 522, 526 (E.D. Tex. 2000)). Here,

Defendants have urged—among other things—the defense of qualified immunity.2 Suffice it to

say, that after review of Defendants’ various pleadings, at this stage of the litigation the defenses

asserted appear well-founded. (Docket Nos. 21, 29, 31, 37, 45, 47.)

III. CONCLUSION

For the foregoing reasons, the undersigned respectfully recommends that Plaintiff’s

“Motion for Entry of Default Judgment” (Docket No. 15) and “Default of Judgment” (Docket No.

17) be DENIED.

NOTICE TO THE PARTIES

2 As noted, Defendants have filed numerous dispositive motions, which are under

consideration. (See Docket Nos. 29, 31, 45, 47.) The undersigned will prepare a separate report

and recommendation addressing the issues raised by those motions.

The Clerk shall send copies of this Report and Recommendation to the parties who have

fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C. §

636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file timely written

objections shall bar an aggrieved party from receiving a de novo review by the District Court on

an issue covered in this Report and, except upon grounds of plain error, from attacking on appeal

the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

SO ORDERED, the 13th of August, 2024 at McAllen, Texas.

NA a.

LA

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NADIA S. MEDRANO

United States Magistrate Judge