San Miguel v. Cochran

SAMUEL SAN MIGUEL, Plaintiff, v. JOHN COCHRAN, et al., Defendants.

CIVIL ACTION NO. 5:20-CV-041-BQ

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION

September 11, 2020

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is pro se Plaintiff Samuel San Miguel's Complaint (ECF No. 1-3, at 13-31)¹ and "Motion (Request) for Entry of Default Judgment" as to Defendants Texas Tech University Health Sciences Center (Texas Tech) and Taylor Caldwell. ECF No. 7. For the reasons stated herein, the undersigned United States Magistrate Judge recommends that the United States District Court DENY San Miguel's Motion for Default Judgment as to both Defendants, and DISMISS WITHOUT PREJUDICE San Miguel's claims against Texas Tech.

I. Procedural History

Plaintiff San Miguel initially filed this action under 42 U.S.C. § 1983 in state court alleging violations of his constitutional rights by Defendants Texas Tech, Marsha McLane, Michael Searcy, Racheal Kingston, Chris Salinas, John Cochran, Cynthia Jumper, Taylor Caldwell, Joanne Castro, Cortney Bearden, and Debra Keesee. Defendant John Cochran removed this case under 28 U.S.C. §§ 1331 and 1441(a) (civil action over which a federal district court would have original jurisdiction, i.e., federal question jurisdiction) from the 154th Judicial District Court of LambCounty, Texas, to this Court on February 21, 2020, with the consent of Defendants McLane, Searcy, Kingston, Salinas, Castro, and Keese.² ECF No. 1, at 2-3. The United States District Judge subsequently transferred this case to the undersigned United States Magistrate Judge for further proceedings. ECF No. 4. On March 3, 2020, Defendant Caldwell filed her Motion to Dismiss.³ ECF No. 6. One day later, San Miguel filed his motion seeking entry of default judgment against Defendants Caldwell and Texas Tech. ECF No. 7. On March 24, the Court ordered San Miguel to demonstrate that he properly served Texas Tech with process through Rebecca Ramirez. ECF No. 10. San Miguel later conceded that Ramirez was not an agent authorized to accept service on Texas Tech's behalf. ECF No. 12, at 2. San Miguel also agreed that Texas Tech is not a "person" under 42 U.S.C. § 1983. Id. Not all parties have consented to proceed before the undersigned magistrate judge. In accordance with the order of transfer, the undersigned makes the following Report and Recommendation to the United States District Judge.

II. Discussion

A. San Miguel's Motion for Default Judgment Should Be Denied

As a rule, default judgments are "generally disfavored in the law" and "should not be granted on the claim, without more, that the defendant ha[s] failed to meet a procedural time requirement." Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000) (internal quotation marks omitted). "[A] 'party is not entitled to a default judgment as a matter of right, even where thedefendant is technically in default.'" Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996)). The necessary weighing of competing policy interests, one favoring resolution of cases on their merits and the other favoring social goals and expediency, is "largely within the domain of the trial judge's discretion." Sindhi v. Raina, 905 F.3d 327, 331 (5th Cir. 2018) (internal quotation marks omitted).

Relevant factors include whether material issues of fact are at issue, whether there has been substantial prejudice, whether the grounds for default are clearly established, whether the default was caused by a good faith mistake or excusable neglect, the harshness of a default judgment, and 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).

Defendant Caldwell was initially served with process on January 28, 2020. ECF No. 1, at 1; ECF No. 1-3, at 130. As such, Defendant Caldwell's responsive pleading was initially due in the state court action February 24, 2020. See Tex. R. Civ. P. 99(c) (answer due by 10:00 a.m. on the first Monday after the expiration of twenty days from service). Defendant Cochran, however, filed his Notice of Removal on February 21, 2020, prior to Defendant Caldwell's answer date. ECF No. 1. Because twenty-one days following service upon Defendant Caldwell had already expired at the time of removal, Defendant Caldwell had seven days after the removal date in which to file a responsive pleading. See Fed. R. Civ. P. 81(c)(2)(C) (providing that an answer must be filed within seven days of an action's removal unless the rules provide a longer deadline); G & C Land v. Farmland Mgmt. Servs., Civil Action No. 5:12-CV-134-C, 2012 WL 12863112, at *1 n.1 (N.D. Tex. Oct. 12, 2012) (noting that Defendant's answer filed within seven day period after removal to federal court would have been timely but for default judgment entered prior to removal). Defendant Caldwell's responsive pleading was therefore due in this Court on February28, 2020. Ultimately, Defendant Caldwell filed her Motion to Dismiss on March 2, 2020, one day after the deadline.⁴

Though Defendant Caldwell did not timely file her motion to dismiss, the undersigned does not find that the relevant factors weigh in favor of granting default judgment to San Miguel. As demonstrated by Defendant Caldwell's motion, she clearly disputes San Miguel's allegations and asserts cognizable grounds for denying relief. Moreover, San Miguel has not clearly demonstrated the grounds for default, and imposing a default judgment approaching $400,000 against Defendant Caldwell, under these circumstances, would be extraordinarily harsh, particularly where her motion was filed one day late and before the request for entry of default was filed. See Impala African Safaris, LLC v. Dall. Safari Club, Inc., Civil Action No. 3:13-CV-2175-G, 2013 WL 6231413, at *3 (N.D. Tex. Dec. 2, 2013) (quoting Rolle v. Law Office of Samuel Streeter, PLLC, No. CIV 08-274-TUC-CJK, 2010 WL 729022, at *6 (D. Ariz. Mar. 2, 2010)) (citing Lott v. Indian Harbor Marine, Inc., No. 96-2480, 1997 WL 325368, at *1 (E.D. La. June 11, 2997)) (adopting recommendation to deny motion for default judgment and noting that "substantial amount of damages involved weigh[ed] against entry of a default judgment" because it would render default judgment "especially harsh"). San Miguel has similarly failed to establish any prejudice by virtue of the Motion to Dismiss being filed one day late. See Lacy 227 F.3d at 293 ("[M]ere delay does not alone constitute prejudice.").

Equally important is the fact San Miguel has not followed the proper procedural mechanism for obtaining default judgment. Specifically, San Miguel did not seek entry of defaultby the Clerk⁵ prior to filing his motion for default judgment. See ECF No. 7 (seeking entry of default judgment); see also Ocwen Loan Servicing, LLC v. Kingman Holdings, LLC, No. 3:18-cv-1197-S, 2018 WL 7150247, at *2 (N.D. Tex. Dec. 14, 2018) (noting that entry of default by the Clerk is a necessary step in the process of obtaining default judgment), R. & R. adopted by 2019 WL 399900 (N.D. Tex. Jan. 31, 2019). Thus, the Court should deny San Miguel's motion as to Defendant Caldwell. With respect to Texas Tech, the undersigned recommends denying San Miguel's motion because, as San Miguel concedes, Texas Tech has not been properly served with process in this matter. See ECF No. 12, at 2 (admitting that Rebecca Ramirez is not an agent authorized to accept service on Texas Tech's behalf). As such, the undersigned recommends that the United States District Court deny San Miguel's "Motion (Request) for Entry of Default Judgment." ECF No. 7.

B. San Miguel's Claims Against Texas Tech Should Be Dismissed for Failure to Prosecute

A court has inherent authority under Rule 41(b) of the Federal Rules of Civil Procedure to sua sponte dismiss an action for want of prosecution. Link v. Wabash R.R. Co., 370 U.S. 626, 630-33 (1962); Clofer v. Perego, 106 F.3d 678, 679 (5th Cir. 1997); Rogers v. Kroger Co., 669 F.2d 317, 319-20 (5th Cir. 1982) (noting that courts may dismiss sua sponte for failure to prosecute without notice to the parties). This authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link, 370 U.S. 626).

The Federal Rules of Civil Procedure give a plaintiff ninety days to serve a defendant with a Complaint after it is filed. Fed. R. Civ. P. 4(m). If the plaintiff does not serve the defendantwithin the time frame, the court may dismiss the action without prejudice against the unserved defendant. Id. The undersigned notes that such dismissals should follow notice to plaintiff of the possibility of dismissal. Id. The undersigned believes, however, that dismissal is appropriate without notice in this case for two reasons.

First, San Miguel concedes not only that Texas Tech has not been properly served—and has made no further attempt to properly serve Texas Tech while requesting that the Court order service upon other Defendants (ECF Nos. 12, 14)—but also admits that Texas Tech is not a person under § 1983 and that no claim may proceed against it. ECF No. 12, at 2; see also ECF No. 11 (stating that San Miguel wrongly believed Texas Tech was liable under a Monell theory and noting that he seeks damages against other Defendants in their individual capacities and injunctive relief in their official capacities). Under the circumstances, the undersigned interprets San Miguel's actions and admissions to mean that San Miguel no longer wishes to pursue his claims against Texas Tech seeking either monetary damages or injunctive relief. As such, dismissal of the claims for failure to prosecute is appropriate.

Second, dismissal of San Miguel's claims would be appropriate even if he did wish to pursue his claims against Texas Tech...