Ellis

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ERIC ELLIS, §

Plaintiff, §

§

v. § No. 3:25-CV-867-N-BW

§

CITY OF DALLAS, et al., §

Defendants. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pending before the Court is a Motion to Dismiss filed by Defendant City of

Dallas (“City”), on October 7, 2025. (Dkt. No. 21.) Also pending is a Motion for

Default Judgment Against All Defendants filed by Plaintiff Eric Ellis on October 16,

2025 (Dkt. No. 26). The case was automatically referred to the undersigned

magistrate judge for case management pursuant to Special Order 3-251. (See Dkt.

No. 3.)

For the reasons explained below, the undersigned RECOMMENDS that

Ellis’s Motion for Default Judgment (Dkt. No. 26) be DENIED, and the City’s

Motion to Dismiss (Dkt. No. 21) be GRANTED in part and DENIED in part.

I. BACKGROUND

Ellis, proceeding pro se, filed this action in the 191st Judicial District Court of

Dallas County, Texas on January 13, 2025, naming as Defendants the City and three

individual police officers, one of whom is identified only as “John Doe.” (See Dkt.

No. 1-5 (“Pet.”).) The City timely removed to this Court on April 8, 2025, on the

basis of federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. (See

Dkt. No. 1.) At the time of removal, the City was the only defendant who had been

served and appeared. (See id. at ¶ 11; see also Dkt. 1-4.)

On October 1, 2025, Ellis was granted leave to file a Second Amended

Complaint (see Dkt. Nos. 17, 18), after which summonses were issued to Defendants

Dalton Harvey and Jonathan Wellman (Dkt. No. 19). Both summonses were

returned executed. (Dkt. Nos. 23, 24.)

On October 7, 2025, the City filed the instant motion to dismiss, Ellis filed a

response on the same day (Dkt. No. 21), and the City filed a reply on October 21,

2025 (Dkt. No. 27). The City’s motion to dismiss (Dkt. No. 21) is therefore ripe for

review.

On October 16, 2025, Ellis filed a request for clerk’s entry of default as to the

City (Dkt. No. 25), which the clerk declined to enter. On the same day, Ellis filed

the instant motion for default judgment. (Dkt. No. 26.) The City, along with

Defendants Harvey and Wellman (the “Individual Defendants”) (collectively,

“Defendants”), filed a response on November 6, 2025 (Dkt. No. 31), to which Ellis

filed a reply on November 7, 2025 (Dkt. No. 32). Accordingly, Ellis’s motion for

default judgment (Dkt. No. 26) is also ripe for review.

Then, on October 26, 2025, the Individual Defendants filed a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a

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claim (Dkt. No. 29). Ellis filed a response on the same day. (Dkt. No. 30.) On

November 10, 2025, the Individual Defendants filed a reply (Dkt. No. 33), after

which Ellis filed, without leave of court, a sur-reply (Dkt. No. 34) on the same date.

But a sur-reply is not authorized as a matter of right under the Court’s local rules.

See N.D. Tex. Civ. R. 7.1 (providing for motion, response, and reply). “Whether to

allow filing a surreply is within the sound discretion of the court, subject to review

for abuse of discretion.” Goodson v. Nasco Healthcare Inc., No. 3:21-CV-1467-N, 2025

WL 2322793, at *4 (N.D. Tex. Aug. 12, 2025) (internal quotation marks omitted).

Ellis did not seek leave to file the sur-reply, and the undersigned does not find

grounds to allow him to file a sur-reply. The undersigned therefore has not

considered the unauthorized sur-reply in making these findings, conclusions, and a

recommendation.

II. LEGAL STANDARDS AND ANALYSIS

A. The City’s Motion to Dismiss

The basis of the City’s motion to dismiss is Ellis’s designation as a vexatious

litigant in the Northern District of Texas and his failure to seek leave before litigating

in this Court. (See generally Dkt. No. 21.) The City’s brief two-page motion does not

advance any arguments addressing the merits of Ellis’s claims, but instead requests

leave to later brief a Rule 12(b)(6) motion if this motion is denied. (See Dkt. 21 at

ECF p. 2 n.2.)

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It is true that Ellis has been declared a vexatious litigant in the Northern

District of Texas. See Ellis v. City of Fort Worth, et al., Case No. 4:23-CV-685-P, Dkt.

Nos. 6, 8. In an order dated July 12, 2023, the Court warned Ellis that

“(1) monetary sanctions may be imposed for future vexatious litigation considered to

be abusive and harassing in nature, and (2) that Ellis must obtain leave to court by

filing a motion before he is permitted to file any additional complaints in this

district.” Id., Dkt. No. 8. But Ellis did not file a complaint in this Court in

contravention of the order. Rather, it was the City that filed the Notice of Removal

and thereby initiated proceedings in this Court.

Furthermore, contrary to the City’s position, Ellis sought and obtained leave

to file an amended pleading, which the City did not oppose. (See Dkt. Nos. 9, 10, 17,

18.) Therefore, the undersigned recommends that the City’s request to dismiss Ellis’s

lawsuit in its entirety (Dkt. No. 21) because he has been deemed a vexatious litigant

be denied. However, the City’s request that it be allowed to fully brief a motion to

dismiss under Rule 12(b), should be granted, as discussed below. (See Dkt. 21 at

ECF p. 2 n.2.)

B. Ellis’s Motion for Default Judgment

Turning to Ellis’s Motion for Default Judgment Against All Defendants (Dkt.

No. 26), Ellis argues that” [t]he record establishes that Defendant was properly

served, had notice of the Second Amended Complaint, and failed to file a valid Rule

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12 motion or answer by the October 15 deadline. The City of Dallas has therefore

failed to plead or otherwise defend, and entry of default is mandatory under Rule

55(a).” (See Dkt. No. 26 at ¶ 9.) In his reply, Ellis maintains that the Individual

Defendants are also in default. (See Dkt. No. 28 at ¶¶ 8-9)

Rule 55 of the Federal Rules of Civil Procedure governs the entry of a default

judgment. A default judgment is available to a plaintiff who demonstrates the

following: (1) the defendant was served with a summons and the complaint, and a

default was entered because the defendant failed to appear; (2) the defendant is not a

minor or an incompetent person; (3) the defendant is not in the military or subject to

the Soldiers and Sailors Relief Act of 1940, 50 U.S.C. § 3931; and (4) if the defendant

appeared in the case, the defendant was provided with notice of the default judgment

application at least three days before the hearing. See Arch Ins. Co. v. WM Masters &

Assocs., Inc., 3:12-CV-2092-M, 2013 WL 145502, at *2 (N.D. Tex. Jan. 14, 2013)

(citing Twentieth Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1070 (D.

Ariz. 2006)). In addition, the plaintiff “must make a prima facie showing of

jurisdiction.” TFHSP, LLC Series 10147 v. U.S. Bank Nat’l Ass’n, 3:14-CV-2589-M-BN,

2016 WL 2856006, at *2 (N.D. Tex. Apr. 18, 2016) (citing Sys. Pipe & Supply, Inc. v.

M/V Viktor Kurnatovskiy, 242 F.3d 322, 325 (5th Cir. 2001)).

The Fifth Circuit has set out a three-step process for a plaintiff seeking default

judgment: (1) default by the defendant; (2) entry of default by the Clerk; and (3) entry

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of a default judgment by the district court. See New York Life Ins. Co. v. Brown, 84

F.3d 137, 141 (5th Cir. 1996); see also J & J Sports Prods., Inc. v. Morelia Mexican Rest.,

Inc., 126 F. Supp. 3d 809, 813 (N.D. Tex. 2015). A default occurs when a defendant

has failed to plead or otherwise respond to the complaint within the time required by

the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 55(a); PharMerica Corp. v.

Paragon Healthcare Grp., LLC, No. 2:19-CV-00196, 2021 WL 9274561, at *2 (N.D.

Tex. Aug. 20, 2021). “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).

“‘Default 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) (quoting Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874

F.2d 274, 276 (5th Cir. 1989)); see also Arch Ins. Co., 2013 WL 145502, at *2 (citing

Rogers v. Hartford Life & Acc. Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999) (observing the

Fifth Circuit’s general disfavor of default judgments and preference to resolve cases

on their merits). But this policy is “counterbalanced by considerations of social

goals, justice, and expediency, a weighing process [that] lies largely within the

domain of the trial judge’s discretion.” Rogers, 167 F.3d at 936 (quoting Pelican Prod.

Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990) (internal quotations omitted));

see also Merrill Lynch Mortg. Corp. v. Narayan, 908 F.2d 246, 253 (7th Cir. 1990)

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(noting that default judgments allow courts to manage their dockets “efficiently and

effectively”).

Courts have developed a three-part analysis to determine whether to enter a

default judgment against a defendant. United States v. 1998 Freightliner Vin #:

1FUYCZYB3WP886986, 548 F. Supp. 2d 381, 384 (W.D. Tex. 2008). First, in

assessing whether the entry of a default judgment is procedurally warranted, courts

consider several factors, including: (1) whether material issues of fact are at issue;

(2) whether there has been substantial prejudice; (3) whether the grounds for default

are clearly established (4) whether the default was caused by a good faith mistake or

excusable neglect; (5) the harshness of a default judgment; and (6) whether the court

would think itself obliged to set aside the default on the defendant’s motion. Lindsey

v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). Second, courts assess the

substantive merit of the plaintiff’s pleadings to determine whether there is a sufficient

factual basis for default judgment. See Nishimatsu Const. Co. v. Houston Nat. Bank, 515

F.2d 1200, 1206 (5th Cir. 1975). (finding that a plaintiff must plead sufficient facts to

show it is entitled to relief). Third, courts determine what form of relief, if any, the

plaintiff should receive. See 1998 Freightliner, 548 F. Supp. 2d at 384.

First, the undersigned finds that the Individual Defendants have timely filed

their motions to dismiss pursuant to the Federal Rules of Civil Procedure. Ellis’s

second amended complaint was deemed filed on October 1, 2025. (See Dkt. No. 18),

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By order dated the same date, the Court directed the clerk to issue summonses to

Defendants Harvey and Wellman and ordered the United States Marshal Service to

serve the summons and second amended complaint. (See Dkt. No. 17.) Fed. R.

Civ. P. 12(a)(1)(A)(i) compels a defendant to file an answer or other responsive

pleading “within 21 days after being served with the summons and complaint[.]”

Thus, service of the summons and complaint was the event that triggered the 21-day

period within which Defendants Harvey and Wellman were obligated to file an

answer. (See Dkt. Nos. 23, 24.)

The record reflects that Defendant Harvey was served on October 9, 2025

(Dkt. No. 24), and Defendant Wellman was served on October 7, 2025 (Dkt. No.

23). Therefore, Harvey’s deadline was October 30, 2025, and Wellman’s deadline

was October 28, 2025. Accordingly, entry of a default judgment pursuant to Fed. R.

Civ. P. 55(a) is clearly not appropriate as to these Defendants because they have not

“failed to plead or otherwise defend” in this action. To the contrary, the record

reflects that Harvey and Wellman timely filed a motion to dismiss for failure to state

a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on October

26, 2025. (Dkt. No. 29.) Therefore, no default has occurred. See Fed. R. Civ. P.

55(a). Ellis’s motion for default judgment (Dkt. No. 26) should therefore be denied

as to the Individual Defendants.

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With respect to the City, it timely filed a motion to dismiss on October 7, 2025

(see Dkt. No. 21), but as noted above, while the City generally asserted that Ellis

failed to state a claim, it did not advance any specific arguments addressing the

merits of Ellis’s claims. (See id.) The City argued merely that Ellis’s claims should be

dismissed because he has been deemed a vexatious litigant in this district (see id.),

requesting leave to later brief a Rule 12(b)(6) motion if the instant motion failed (see

Dkt. 21 at ECF p. 2, n.2). As such, the City’s motion arguably does not qualify as an

answer or other responsive pleading as provided in Rule 12. In response to Ellis’s

motion for default judgment, the City appears to acknowledge that its motion to

dismiss did not meet the Rule 12 definition of a responsive pleading. (See Dkt. No.

31.) But the City nevertheless argues that because the motion was timely filed, it

evinces an attempt to defend and re-urges its request for leave to brief a Rule 12(b)(6)

motion if the present motion fails. (See id.)

Default judgment is a harsh remedy and should only be resorted to “in

extreme situations.” Lewis, 236 F.3d at 767. Accordingly, default judgment may be

too extreme where default results from a “good faith mistake” or “excusable

neglect.” Rubin v. Carvi's Custom Painting, LLC, No. 4:24-CV-005, 2024 WL 3363920,

at *3 (N.D. Tex. July 10, 2024). Neglect is not considered excusable where there is a

“clear record of delay or contumacious conduct.” Sun Bank of Ocala, 874 F.2d at 276.

Here, the record lacks any indication that the City engaged in contumacious

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conduct. The City has defended the case by timely filing an answer in state court on

March 27, 2025 (Dkt. No. 1-9), timely removing to this Court on April 8, 2025 (Dkt.

No. 1); timely filing a Joint Status Report on September 3, 2025 (Dkt. No. 12), and

timely filing a response to Ellis’s motion for default judgment on November 6, 2025

(Dkt. No. 31).

In addition, the City timely filed the instant motion to dismiss on October 7,

2025, generally asserting that Ellis’s second amended complaint had failed to state a

claim. (See Dkt. 21 at ECF p. 2 n.2.) See Rogers v. Barnhart, 365 F. Supp. 2d 803, 808

(S.D. Tex. 2004) (citing Sun Bank of Ocala, 874 F.2d 274 at 277 (“The filing of a

motion to dismiss is normally considered to constitute an appearance[.]”)). Ellis

therefore cannot satisfy the first requirement for a default judgment—that the City

failed “to plead or otherwise defend.” Fed. R. Civ. P. 55(a); New York Life Ins. Co. v.

Brown, 84 F.3d 137, 141 (5th Cir. 1996). In addition, Ellis cannot satisfy the second

requirement for a default judgment because the clerk declined to enter default.

Furthermore, the Lindsey factors articulated above favor denying Ellis’s

motion. Lindsey, 161 F.3d at 893. Ellis is not entitled to default judgment as a

matter of right. See Lewis, 236 F.3d at 767. As noted previously, the Fifth Circuit

generally disfavors default judgments and prefers that cases be resolve on their

merits. See Rogers, 167 F.3d at 936. In view of the claims asserted in this case and

the damages sought, a decision on the merits is warranted. See Stelax Indus., Ltd. v.

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Donahue, No. 3:03-CV-923-M, 2004 WL 733844, at *11 (N.D. Tex. Mar. 25, 2004).

Accordingly, Ellis’s motion for default judgment should be denied.

IV. RECOMMENDATION

For these reasons, the undersigned RECOMMENDS that the City’s Motion

to Dismiss (Dkt. No. 21) be DENIED, and Ellis’s Motion for Default Judgment

(Dkt. No. 26) be DENIED. The undersigned further RECOMMENDS that the

City’s request to file a motion to dismiss under Rule 12(b) be GRANTED and that

the District Judge, in accepting this recommendation, allow the City to file a motion

under Fed. R. Civ. P. 12 within 21 days after the District Judge accepts this

recommendation.

SO RECOMMENDED on November 12, 2025.

tn

BRIA cKAY

UNITED STATES MAGISTRATE JUDGE

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NOTICE OF RIGHT TO OBJECT

A copy of these findings, conclusions, and recommendation will be served on

all parties in the manner provided by law. Any party who objects to any part of this

report and recommendation must file specific written objections within 14 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be

specific, an objection must identify the finding or recommendation to which

objection is made, state the basis for the objection, and indicate the place in the

magistrate judge’s report and recommendation where the disputed determination is

found. An objection that merely incorporates by reference or refers to the briefing

before the magistrate judge is not specific. Failure to file specific written objections

will bar the aggrieved party from appealing the factual findings and legal conclusions

of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,

1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending the time to file objections to 14 days).

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