Hernandez v. Knowledge Enterprises Incorporated d/b/a Kindercity Day Care et al

Filing 10

OPINION AND ORDER denying as moot 7 Motion for Default Judgment; denying 9 Amended Motion for Entry of Default Judgment and Motion For Final Judgment. It is further ORDERED that defts Knowledge Enterprises and Wisdom Enterprises shall obtain cou nsel and file notice of appearance within 21 days. Failure to comply may result in the Court's entering default against them. It is further ORDERED that all defts shall file an answer within 21 days.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARIA B. HERNANDEZ,

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Plaintiff,
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VS.
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KNOWLEDGE ENTERPRISES
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INCORPORATED; dba KINDERCITY DAY §
CARE, et al,
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Defendants.
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CIVIL ACTION NO. 4:12-CV-2375

OPINION AND ORDER

Pending before the Court is Plaintiff Maria B. Hernandez’s Amended Motion for Entry of
Default Judgment and Motion for Final Judgment (Doc. No. 9) against Defendants Knowledge
Enterprises Incorporated d/b/a Kindercity Day Care (“Knowledge Enterprises”), Wisdom
Daycare Enterprises, Inc. f/k/a Wisdom Enterprises, Inc. d/b/a Kinderworld Day Care and
Learning Center (“Wisdom Enterprises”), and Izathunisa Moosavi. Having considered the
motion, the facts of the case, and the applicable law, the Court concludes that the motion should
be denied.
Federal Rule of Civil Procedure 55 sets forth the conditions and procedures for entering a
default and entering a default judgment. First, when a party’s default is established by affidavit
or otherwise, the clerk must enter that party’s default. Fed. R. Civ. P. 55(a). Second, after such
entry, the plaintiff may apply to the court for a default judgment. Fed. R. Civ. P. 55(b). Whether
this application is granted is a matter within the sound discretion of the district court, as a default
judgment is not a matter of right even when the defendant is technically in default. Ameser v.
Nordstrom, Inc., 442 F. App’x 967, 969 (5th Cir. 2011) (quoting Mason v. Lister, 562 F.2d 343,
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345 (5th Cir. 1977)). Furthermore, default judgments are a drastic remedy to be used only in
extreme situations, as federal courts prefer to adjudicate disputes on their merits. Id. (quoting
Mason, 562 F.2d at 345); see also Harper Macleod Solicitors v. Keaty & Keaty, 260 F.3d 389,
393 (5th Cir. 2001). Therefore, any questions regarding the propriety of default judgment should
be resolved against such judgment and in favor of adjudication on the merits.
In this case, Plaintiff filed a motion for default judgment (Doc. 7) on October 1, 2012,
and Defendant Izathunisa Moosavi made a pro se appearance by filing a response (Doc. 8) on
October 22, 2012, on behalf of both Moosavi and corporate Defendants, Knowledge Enterprises
and Wisdom Enterprises. In that response, Moosavi showed good cause for having failed to
answer Plaintiff’s complaint and stated the intent of Moosavi and corporate Defendants to defend
against Plaintiff’s claims. This response is sufficient with respect to Moosavi—at least for the
purpose of making an appearance—but not with respect to the corporate entities.
First, Federal Rule of Civil Procedure 12(a)(1) requires a defendant to serve an answer
within twenty-one days of being served with the summons and complaint. Defendants still have
yet to answer Plaintiff’s complaint (Doc. 1), which was filed on August 8, 2012. Second, in
federal court a corporation cannot proceed pro se but must be represented by counsel. Memon v.
Allied Domecq QSR, 385 F.3d 871, 873 (5th Cir. 2004). Upon a corporation’s appearance
without counsel, the court should warn the corporation to obtain counsel and afford it the
opportunity to cure this defect before striking its pleadings. Id. at 874. The Court acknowledges
Defendants’ intent to plead their case; it is now incumbent upon them to do so in accordance
with the rules outlined above.
For the foregoing reasons, the Court concludes that default should not be entered against
Defendants, pending their filing an answer to Plaintiff’s complaint and Defendant corporate
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entities’ obtaining counsel. Accordingly, it is hereby
ORDERED that Plaintiff’s Amended Motion for Entry of Default Judgment and Motion
for Final Judgment (Doc. No. 9) is DENIED. It is further
ORDERED that Plaintiff’s Motion for Default Judgment (Doc. 7) is DENIED as moot. It
is further
ORDERED that Defendants Knowledge Enterprises and Wisdom Enterprises shall obtain
counsel and file a notice of appearance within twenty-one days. Failure to comply may result in
the Court’s entering a default judgment against them. It is further
ORDERED that all Defendants shall file an answer to Plaintiff’s complaint within
twenty-one days. Failure to comply may result in the Court’s entering a default judgment against
them.
SIGNED at Houston, Texas, this 29th day of October, 2012.

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MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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