Parker v. Bill Melton Trucking, Inc. et al

Filing 47

MEMORANDUM OPINION AND ORDER: Melton Trucking's motion for leave to file an answer (docket entry 45 ) is GRANTED. Melton Trucking is DIRECTED to file its answer to the plaintiff's first amended complaint by Friday, 5/6/2016. (Ordered by Senior Judge A. Joe Fish on 5/3/2016) (bdb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BRIANNA PARKER,
Plaintiff,
VS.
BILL MELTON TRUCKING INC., and
FRANKIE THACKER, AS THE
REPRESENTATIVE OF THE ESTATE
OF CHARLES EDWARD THACKER,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
3:15-CV-2528-G

MEMORANDUM OPINION AND ORDER
Before the court is the defendant Bill Melton Trucking, Inc. (“Melton
Trucking”)’s motion for leave to file an answer to the plaintiff’s first amended
complaint (docket entry 45). For the reasons stated below, Melton Trucking’s
motion for leave to file an answer to the plaintiff’s first amended complaint is
granted.
I. BACKGROUND
On April 22, 2015, the plaintiff, Brianna Parker, filed her original petition in
the 298th Judicial District Court of Dallas County, Texas (docket entry 1). Melton
Trucking filed its original answer in the state court and then removed the case to this

court (docket entry 1). After the court granted the plaintiff leave to file an amended
complaint (docket entry 13), she filed her first amended complaint on November 2,
2015 (docket entry 14). Melton Trucking did not file its answer until April 12, 2015
(docket entry 30), whereupon the plaintiff filed a motion for default or alternatively a
motion to strike Melton Trucking’s answer (docket entry 34). The court denied the
plaintiff’s motion for default but granted the plaintiff’s motion to strike Melton
Trucking’s answer as untimely because Melton Trucking did not seek leave of court to
file its untimely answer (docket entry 36). The plaintiff filed a request for entry of
default on April 18, 2016, alleging that Melton Trucking had failed to file a
responsive pleading or otherwise defend the suit (docket entry 37). On April 19,
2016, the clerk of court entered default against Melton Trucking (docket entry 38).
Melton Trucking then filed a motion to set aside clerk’s entry of default on April 26,
2016 (docket entry 41). The court granted Melton Trucking’s motion to set aside
the clerk’s entry of default (docket entry 44). At the court’s direction, Melton
Trucking filed a motion for leave to file an answer to the plaintiff’s first amended
complaint (docket entry 45). The plaintiff filed a response opposing Melton
Trucking’s motion (docket entry 46).
II. ANALYSIS
When a party has failed to complete an act within a specified time, the court
may, for good cause extend the time “on motion made after the time has expired if

-2-

the party failed to act because of excusable neglect.” FED. R. CIV. P. 6(b)(1)(B). The
Supreme Court defined the term “excusable neglect” in Pioneer Investment Services
Company v Brunswick Associates Limited Partnership, 507 U.S. 380 (1993). According to
the Court, “[t]he ordinary meaning of ‘neglect’ is ‘to give little attention or respect’ to
a matter, or, closer to the point for our purposes, ‘to leave undone or unattended to
esp[ecially] through carelessness.”’ 507 U.S. at 388 (quoting WEBSTER’S NINTH NEW
COLLEGIATE DICTIONARY 791 (1983) (emphasis in original)). “Although
inadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect, it is clear that ‘excusable neglect’ . . . is a somewhat
‘elastic concept’ and is not limited strictly to omissions caused by circumstances
beyond the control of the movant.” Id. at 392 (footnotes omitted). Rather, “[t]he
word . . . encompasses both simple, faultless omissions to act and, more commonly,
omissions caused by carelessness.” Id. at 388.
Here, Melton Trucking contends that its failure to respond in a timely fashion
to the plaintiff’s first amended complaint is excusable neglect because the failure was
not intentional and instead was the result of mistake, inadvertence, or carelessness.
Melton Trucking’s Motion for Leave to File Answer (“Motion”) at 4 (docket entry
45). Melton Trucking maintains that the departure of an attorney assigned to the
case and a failure to properly calendar the need to file an answer led to the almost
one hundred fifty day delay in filing its answer. Id. at 5. The plaintiff responds that

-3-

Melton Trucking has not supported these facts with an affidavit. Plaintiff’s Response
to Motion for Leave to file Answer (“Response”) at 3-4 (docket entry 46). While
Melton Trucking failed to support its contention with evidence, its alleged
carelessness here fits within the definition of excusable neglect under FED. R. CIV. P.
6(b)(1)(B).
If the court were to deny Melton Trucking’s motion for leave to file an answer,
Melton Trucking would be in default. Default judgments are generally disfavored
and should not be granted on the claim, without more, that the defending party has
failed to meet a procedural time requirement. Lacy v. Sitel Corporation, 227 F.3d 290,
292 (5th Cir. 2000). Courts generally have refused to enter a default judgment if the
defending party has made any type of appearance in the suit by responding to the
complaint. See, e.g., Securities and Exchange Commission v. Amerifirst Funding, Inc., No.
3:07-CV-1188-D, 2007 WL 4226921 at *3 (N.D. Tex. Nov. 29, 2007) (Fitzwater,
Chief J.); Dahlstrom v. Moore, No. 4:07-CV-0229, 2007 WL 2908448 (E.D. Tex.
Oct. 3, 2007); Bilbe v. Belsom, No. 06-CV-7596, 2006 WL 3388482 (E.D. La.
Nov. 21, 2006). As a general rule, entry of a default judgment is treated as a
conclusive and final adjudication of the issues necessary to justify the relief awarded.
See Jackson v. FIE Corporation, 302 F.3d 515, 525 n.29 (5th Cir. 2002).
Consequently, “[d]efault judgments are a drastic remedy, not favored by the Federal

-4-

Rules and resorted to by courts only in extreme situations.” Sun Bank of Ocala v.
Pelican Homestead and Savings Association, 874 F.2d 272, 276 (5th Cir. 1989).
Melton Trucking has made several appearances. It filed an answer to the
plaintiff’s original petition, it removed the action here, it objected to the plaintiff’s
motion to remand, it participated in discovery, and it attempted to file its answer to
the plaintiff’s first amended complaint. This is not a situation where the defending
party has failed to make any type of appearance or has not contested the merits of
the case. A party “is not entitled to a default judgment as a matter of right, even
where the [opposing party] is technically in default.” Ganther v. Ingle, 75 F.3d 207,
212 (5th Cir. 1996). The court concludes that Melton Trucking’s actions constitute
excusable neglect to avoid a default judgment.
The plaintiff maintains that she will suffer prejudice because Melton Trucking
had the luxury of filing its answer to her first amended complaint after having
conducted discovery. Response at 2-3. While the court does not deny that Melton
Trucking gained an advantage, any prejudice to the plaintiff does not outweigh the
prejudice to Melton Trucking if the court were to deny the motion, putting Melton
Trucking back in default. Further, if there is a need to amend pleadings in response
to Melton Trucking’s answer, the plaintiff can seek leave of court to amend the
scheduling order.

-5-

The plaintiff also contends that granting the motion would inordinately delay
the case. Id. at 4. While the filing of an untimely answer will delay the case, any
delay is not inordinate and does not outweigh the prejudice that would be done by
placing Melton Trucking in default. Further, the discovery deadline for the case is
November 30, 2016. The plaintiff still has sufficient time to conduct further
discovery if it is needed.
Lastly, the plaintiff requests attorney’s fees for securing the entry of default,
filing the motion for default judgment, and responding to this motion. Id. at 7.
Pursuant to FED. R. CIV. P. 54(d), the court will defer any request for attorney’s fees
until after the matter is resolved on the merits or otherwise when final judgment has
been entered.
III. CONCLUSION
For the reasons stated above, Melton Trucking’s motion for leave to file an
answer (docket entry 45) is GRANTED. Melton Trucking is DIRECTED to file its
answer to the plaintiff’s first amended complaint by Friday, May 6, 2016.
SO ORDERED.

May 3, 2016.
___________________________________
A. JOE FISH
Senior United States District Judge

-6-