The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
DANIEL JUREK ET AL CASE NO. 6:24-CV-00797
VERSUS JUDGE DAVID C. JOSEPH
FEDERAL HOCKEY L L C ET AL MAGISTRATE JUDGE DAVID J. AYO
REPORT AND RECOMMENDATION
Now before this Court is a Motion for Entry of Preliminary Default filed by plaintiffs
Daniel Jurek and Jane Jurek. (Rec. Doc. 52). The undersigned issues the following report
and recommendation pursuant to 28 U.S.C. § 636. Considering the evidence, the law, and
the arguments advanced by Plaintiffs’ motion, it is recommended that Defendants’ Answer
be stricken and, failing response by Defendants within the time to be set by the Court, the
Clerk of Court be ordered to enter a default as to any non-responsive, named Defendant.
Considering the foregoing, the undersigned recommends that Plaintiffs’ instant motion be
granted in part and denied in part as premature.
Factual Background
Plaintiffs filed suit on April 1, 2024 in the Fifteenth Judicial District Court for the
Parish of Lafayette, Louisiana, asserting claims for injuries arising from a January 24,
2024 automobile accident, and naming as defendants Federal Hockey, LLC, (“Federal
Hockey”) Baton Rouge Zydeco, and Wayne Bruce. (Rec. Doc. 1-2, generally). Specifically,
Plaintiffs allege that on the date in question, a charter bus owned by Federal Hockey, LLC
and/or Baton Rouge Zydeco and operated by Wayne Bruce ran a red light and hit the
driver’s side of Plaintiffs’ vehicle, causing severe injury to Daniel Jurek, the driver. (Id. at
¶ 2). Plaintiffs assert claims for physical and mental injuries, property damage, loss of past
and future earnings capacity, and loss of consortium. (Id. at ¶¶ 5–6).
On June 11, 2024, defendants Federal Hockey and Wayne Bruce removed Plaintiffs’
suit to this court, alleging federal diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Rec.
Doc. 1). Defendants’ Notice of Removal asserted that complete diversity existed because
Plaintiffs are citizens of Louisiana and domiciled in Lafayette Parish while defendant
Federal Hockey is an Illinois citizen, and defendant Wayne Bruce is a citizen on Indiana.
(Id. at ¶¶15–18). Alleging that named defendant Baton Rouge Zydeco is a fictitious entity,
Defendants urged the court to disregard Baton Rouge Zydeco—alleged in Plaintiffs’ state
court petition to be a Louisiana juridical entity—in its jurisdictional evaluation. (Id. at ¶
19). Thereafter, Federal Hockey and Wayne Bruce filed a joint answer. (Rec. Doc. 6).
Plaintiffs filed a Supplemental and Amended Complaint on October 10, 2024, again
naming Federal Hockey, Wayne Bruce, and adding Zydeco Hockey, LLC as a named
defendant. The Amended Complaint asserts that Zydeco Hockey is a Louisiana limited
liability corporation located in East Baton Rouge Parish. (Rec. Doc. 18 at ¶ 1). Federal
Hockey, Zydeco Hockey, and Wayne Bruce filed a joint Answer on November 1, 2024. (Rec.
Doc. 23). Baton Rouge Zydeco was dismissed by order of the Clerk of Court on November
22, 2204 and subsequent motion by Plaintiffs. (Rec. Docs. 28, 31).
On January 14, 2025, defense counsel filed a Motion to Withdraw. (Rec. Doc. 36).
The undersigned Magistrate Judge held a telephone scheduling conference on January 27,
2025, at which pretrial conference and trial dates were selected. (Rec. Doc. 37). Federal
Hockey, Zydeco Hockey, and Wayne Bruce were represented by counsel of record during
this teleconference. (Id.). Given the impact of counsel’s motion, particularly noting Federal
Hockey and Zydeco Hockey are limited liability corporations and may not proceed pro se,
the undersigned scheduled a March 11, 2025 telephone conference to discuss counsel’s
Motion to Withdraw and to advise the corporate defendants of the need to obtain new
counsel as quickly as possible. (Rec. Doc. 40). Copies of this Order were sent to Defendants
via certified U.S. Mail at addresses provided by defense counsel. Defense counsel also
attempted to notify Defendants of the teleconference via phone. (Id.). The record reflects
proof of receipt as to all Defendants. (Rec. Docs. 41, 42).
As reflected in the Minutes issued following the March 11 teleconference, Don Lewis
appeared in his capacity as an employee of Zydeco Hockey, but no appearance was made by
defendant Federal Hockey or Wayne Bruce. (Rec. Doc. 43). Following that teleconference,
the undersigned issued an Order granting defense counsel’s motion to withdraw and
directing Defendants to retain and enroll counsel as soon as possible. (Rec. Doc. 44). A
follow-up telephone status conference was also set for April 15, 2025. (Id.). Copies of this
Order were sent to Defendants via certified U.S. Mail at their addresses of record. (Rec.
Doc. 45). The record reflects proof of receipt as to Federal Hockey, but that the Court’s mail
was returned unclaimed as to Wayne Bruce. (Rec. Docs. 46, 47). No proof of receipt or
unsuccessful delivery is filed as to Zydeco Hockey.
Minutes from the April 15, 2025 teleconference reflect that no party appeared. (Rec.
Doc. 48). On May 19, 2025, the undersigned issued an order setting a status conference for
May 19, 2025. (Rec. Doc. 49). Copies of this Court’s April 15 Order were sent to all
Defendants via certified U.S. Mail, return receipt requested. (Rec. Doc. 49). The record
reflects proof of receipt as to defendant Wayne Bruce on June 10, 2025. (Rec. Doc. 51).
Minutes from the June 5 teleconference indicate that no appearance was made by any
Defendant.1 (Rec. Doc. 50).
Against this procedural backdrop, this Court now considers Plaintiffs’ Motion for
Entry of Preliminary Default. (Rec. Doc. 52).
1 As explained in the Court’s Minutes (Rec. Doc. 50), incorrect dial-in information was given,
but counsel for Plaintiff was nevertheless able to join the call. The Court received no indicia that
any Defendant sought to join the call but was unsuccessful.
Applicable Standards
Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, default “must” be
entered by the clerk when “a party against whom a judgment or affirmative relief is sought
has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.”
The failure of a limited liability corporation to comply with a court’s order that the entity
appear through enrolled counsel is generally regarded by courts within the Fifth Circuit as
“failure to otherwise defend” under Rule 55(a). Martinez v. Master Flow Techs., LLC, 2024
WL 4653189 at *2 (W.D. Tex. Oct. 21, 2024); Johnston v. Johnston, 2024 WL 2097158 at *1
(E.D. Tex. Apr. 19, 2024) (internal citations omitted), adopted by, 2024 WL 2094650 (E.D.
Tex. May 9, 2024); Developers Surety & Indem. Co. v. Cercontec, LLC, 202 WL 1271603 at
*2 (W.D. La. Mar. 13, 2020). A limited liability company is a fictional legal person and may
not appear personally on its own behalf as a pro se litigant before the court. Pursuant to 28
U.S.C. §1654, such entities are required to appear through enrolled counsel. Southwest
Exp. Co., Inc. v. I.C.C., 670 F.2d 53, 55 (5th Cir. 1982) (citing Turner v. American Bar
Ass’n., 407 F.Supp. 451, 476 (N.D. Tex. 1975)).
In contrast, an individual may choose to represent himself before the court and, in
that instance, appears pro se in the matter. Pro se litigants are generally afforded latitude
and flexibility by courts but are nevertheless responsible for adhering to the rules of
procedure and court orders. Beard v. Experian Information Solutions, Inc., 214 Fed. App’x
459, 462 (5th Cir. 2007) (citing Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
Obtaining a default judgment is a three-step process, requiring (1) default, (2) entry
of default, and (3) default judgment. Id. (citing N.Y. Life Ins. Co. v. Brown, 84 F.3d 137,
141 (5th Cir. 1996)). Once the clerk has entered a default and that defendant fails to
appear or move to set aside the default, the court may, upon the plaintiff’s motion, enter a
default judgment. Fed. R. Civ. P. 55(b)(2). Where a party has not yet moved for entry of
default, the court may construe a motion for default judgment as one for entry of default.
Johnston, supra, at *2.
Analysis
Where, as here, a limited liability company previously represented by counsel
becomes unrepresented by reason of counsel’s withdrawal and fails to enroll new counsel
against the orders of the court, the court may strike that defendant’s answer and deem all
allegations of the complaint admitted by failure to defend. Donovan v. Road Rangers
Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984). The defendant LLC’s have
been expressly ordered to enroll new counsel and warned that failure to do so may result in
default. (Rec. Doc. 44). Defendant Wayne Bruce, an individual who is now designated as
pro se in this matter, was also warned of the potential for default risked by non-
participation. (Id.).
Courts possess inherent power to control cases before it and parties thereto. The
striking of a pleading lies within those inherent powers. Ocean-Oil Expert Witness, Inc. v.
O’Dwyer, 451 Fed. App’x 324, 332 (5th Cir. 2011) (citing Smith v. Legg (In re United Mkts.
Int’l, Inc.), 24 F.3d 650, 654 (5th Cir. 1994)). The striking of a pleading is an “extreme
sanction,” to be used only where the court finds “clear and convincing proof” of bad faith or
willful conduct by the party to be sanctioned. In re Moore, 739 F.3d 724, 729 (5th Cir.
2014).
The procedural record in this case demonstrates that all defendants were expressly
ordered to enroll counsel, duly warned of the consequences of failing to enroll counsel or
otherwise participate in this litigation, and positively aware of the proceedings and the
Court’s continuing efforts to gain their participation. As cited above, the failure of the
limited liability company defendants to appear through counsel warrants that the Answer
filed on behalf of all defendants be stricken as to the limited liability companies. Pipe
Hitters Union, LLC v. Pipe Hitters Union MC, LLC, 2020 WL 10692700 at *2 (W.D. Tex.
Apr. 27, 2020) (clerk ordered to strike answer of defendant limited liability company after
orders to enroll counsel were ignored).
Similarly, defendant Wayne Bruce’s failure to “otherwise defend” this suit by
participating as a pro se litigant warrants the striking of the Answer as to him. Review of
the record discloses that his failure to participate is willful in nature and does not stem
from a lack of notice of the instant suit or a misunderstanding of the Court’s several orders
requiring participation. Given Bruce’s clear election to ignore these proceedings, the
striking of the answer as to this individual pro se defendant is appropriate. Schiff v. Ward,
2022 WL 18587806 (N.D. Tex. Dec. 19, 2022) (pro se defendant’s willful failure to
participate in litigation as ordered warranted the striking of his answer sua sponte),
adopted by, 2023 WL 1787162 (N.D. Tex. Feb. 6, 2023).
Considering the severity of the sanction recommended, the undersigned will
recommend that all Defendants be notified of the striking of their Answer and of the
possibility of entry of default judgment in this case and provided a reasonable time in which
to respond. Failing responses by Defendants, it will further be recommended that the Clerk
of Court be ordered to enter a default as to each non-responsive, named Defendant.
Thereafter, pursuant to Rule 55, the undersigned will also recommend that Plaintiffs be
permitted to file an appropriate motion for entry of default judgment.
Conclusion
Based upon the proposed findings herein of Defendants’ failure to “otherwise defend”
in this matter, it is recommended that the Answer filed on behalf of all Defendants (Rec.
Doc. 23) be STRICKEN from the record of the case. It is further recommended that, after
Defendants are notified by U.S. Mail, return receipt requested, of the Court’s action and are
provided a reasonable opportunity to respond, the Clerk of Court be ordered to enter a
default as to each non-responsive named defendant. It is further recommended that,
following any entry of default by the Clerk of Court, Plaintiffs be permitted to file an
appropriate motion for entry of default judgment. Considering the foregoing, it is finally
recommended that Plaintiffs’ instant Motion for Entry of Preliminary Default (Rec. Doc. 52)
be GRANTED in part and DENIED in part as premature.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties
aggrieved by this recommendation have fourteen days from service of this report and
recommendation to file specific, written objections with the Clerk of Court. A party may
respond to another party’s objections within fourteen days after being served with of a copy
of any objections or responses to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed
legal conclusions reflected in the report and recommendation within fourteen days following
the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar
an aggrieved party from attacking either the factual findings or the legal conclusions
accepted by the district court, except upon grounds of plain error.
THUS DONE in Chambers, Lafayette, Louisiana on this 19th day of June 2025.
United States Magistrate Judge