BHL Boresight, Inc. v. Geo-Steering Solutions, Inc. et al
OPINION AND ORDER re: 318 Opposed MOTION for Extension of Time to File His Answer, re: 312 Opposed MOTION for Post-Appearance Default Judgment Against Darrell Joy, Or Alternatively, For Order Requiring Defendant Joy To File Answer. ORDERED t hat BHLs Motion for Post-Appearance Default Judgment, or Alternatively,for Order Requiring Defendant Joy to File Answer, re: 312 , is DENIED. ORDERED that Defendant Joys Opposed Motion for Extension of Time to File Answer, re: 318 is GRANTED. (Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BHL BORESIGHT, INC., et al,
GEO-STEERING SOLUTIONS, INC., et al,
April 20, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:15-CV-00627
OPINION AND ORDER
Pending before the Court in the above-referenced cause are Plaintiff BHL Boresight,
Inc.’s (“BHL”) Opposed Motion for Post-Appearance Default Judgment Against Darrell Joy
(“Joy”), or Alternatively, for Order Requiring Defendant Joy to File Answer, Doc. 312, and
Defendant Joy’s Opposed Motion for Extension of Time to File Answer, Doc. 318. Having
considered the Motions, Responses, Replies, and the relevant law, the Court denies BHL’s
Motion and grants Joy’s.
Joy is a Canadian citizen, Doc. 233 at ¶ 9, and one of the principals of Defendants GeoSteering Solutions, Inc. and Geo-Steering Solutions USA, Inc. (collectively, “GSSI
Defendants”), Doc. 75 at 1. Despite Joy’s position, when BHL initiated this suit in March 2015 it
only brought claims against GSSI Defendants and Statoil Gulf Services, LLC (“Statoil”). See
Doc. 1. After discovery revealed Joy and Defendant Neil Tice “directed and instructed Byron
Molloy . . . to copy Boresight’s Software,” however, BHL filed its Motion for Leave to File First
Amended Complaint and Add Additional Parties on December 1, 2015. Doc. 75 at 1–2.
Magistrate Judge Stacy granted BHL’s Motion on August 29, 2016, Doc. 208, and Joy and his
codefendants were thrust into the center of this acrimonious intellectual-property dispute.
Although the court issued summons for Joy and several of his codefendants soon after, at
this point only Zaza has been served. Doc. 228. See generally, Docket of proceedings, 4:15-cv00627. Nevertheless, after the First Amended Complaint (“FAC”) became the operative
pleading, each of Joy’s codefendants quickly filed motions attacking the FAC under Rules
12(b)(1) and 12(b)(6). See Docs. 230, 232, 246, 253, 259. Joy did not join in these challenges.
On October 20, 2016, however, Joy joined in GSSI’s Motion for Reconsideration of the
Court’s prior Opinion and Order granting BHL’s Ex Parte Motion for Protection. Doc. 270. In
this Motion, Joy attempted to cabin his participation by stating:
Boresight has added Darrell Joy as a party to this litigation. Mr. Joy has not been
served and is not before this court in his personal capacity; however, Mr. Joy is an
officer of GSSI and since this Court’s prior order affects due process
considerations for both GSSI and its officers, Mr. Joy joins in this motion with
Doc. 270 at 1 n.1. After this, Joy made no further effort to participate in the case.
On December 7, 2016, BHL then filed the instant Motion for Post-Appearance Default
Judgment, arguing that Joy’s participation in the Motion for Reconsideration brought him within
the Court’s jurisdiction despite the fact that he has yet to be served. Doc. 312. Joy responded to
BHL’s Motion on December 8, 2016, by filing his Response in Opposition, Motion for
Extension of Time to File Answer, and Motion to Dismiss. Docs. 317–19. The parties’ motions
are now ripe. Because the Court takes up all of Defendants Motions to Dismiss in a separate
order, however, only the Motion for Default Judgment and Motion for Extension are addressed
BHL’s Motion for Default
In its Motion for Default Judgment, BHL argues that by participating in the Motion for
Reconsideration, Joy sought affirmative relief from the Court, thereby making his participation a
general appearance. Doc. 312. Accordingly, BHL seeks an entry of default judgment against Joy,
or in the alternative, an order from this Court requiring Joy to file an answer. Id. In his Response,
Joy argues that because he filed a Motion to Dismiss, BHL’s Motion for Default is moot because
Fed. R. Civ. P. 55(a) mandates that “there can be no entry of default unless the defendant has
‘failed to plead or otherwise defend’ against the allegations against him.” Doc. 319 at 1.
Federal Rule of Civil Procedure 55 allows a party to seek a default judgment “[w]hen a
party against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend.” When a defendant fails to plead or otherwise respond to the complaint within the time
required by the Federal Rules of Civil Procedure a default occurs. N.Y. Life Ins. Co. v. Brown, 84
F.3d 137, 141 (5th Cir. 1996). The plaintiff may then apply to the court for a default judgment.
Fed. R. Civ. P. 55(a)(b)(2). Until the Court obtains personal jurisdiction over the Defendants by
way of service, however, “the defendant has no duty to answer the complaint and the plaintiff
cannot obtain a default judgment.” Rogers v. Hartford Life and Acc. Ins. Co., 167 F.3d 933, 937
(5th Cir. 1999) (citing Broadcast Music, Inc. v. M.T.S. Enter., Inc., 811 F.2d 278, 282 (5th Cir.
1987)). Thus, a defendant’s duty to defend a suit does not arise until he has been served with
process and properly brought before the court. Broadcast Music, 811 F.2d at 282. If a defendant
is improperly served and the district court thereby fails to acquire in personam jurisdiction, then
a subsequent default judgment is void. Rogers, 167 F.3d at 940.
Service of process and personal jurisdiction may be waived by a party. Familia De Boom
v. Arosa Mercantil, S.A., 629 F.2d 1134, 1140 (5th Cir. 1980). One such way an individual may
waive either and submit to the jurisdiction of the court is by general appearance. Ins. Corp. of
Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S. Ct. 2099, 2105, 72
L. Ed. 2d 492 (1982). “A party makes a general appearance whenever it invokes the judgment of
the court on any question other than jurisdiction.” Maiz v. Virani, 311 F.3d 334, 340 (5th Cir.
2002). “In determining whether conduct is sufficient to be considered a general appearance, the
focus is on affirmative action that impliedly recognizes the court’s jurisdiction over the parties.”
Jones v. Sheehan, Young, & Culp, P.C., 82 F.3d 1334, 1340 (5th Cir. 1996) (citation omitted).
An appearance in an action generally involves some presentation or submission to the
court and may result from the filing of an answer without raising jurisdictional defects.
Louisiana ex rel. Dept. of Transp. & Dev. v. Kition Shipping Co., Ltd., CIV.A. 08-452-A-M2,
2009 WL 1664621, at *4 (M.D. La. May 4, 2009), vacated in part, 653 F. Supp. 2d 633 (M.D.
La. 2009). “An appearance may also arise by implication ‘from a defendant’s seeking, taking, or
agreeing to some step or proceeding in the cause beneficial to himself or detrimental to [the]
plaintiff other than one contesting only the jurisdiction or by reason of some act or proceedings
recognizing the case as in court.’” Cactus Pipe & Supply Co., Inc. v. M/V Montmartre, 756 F.2d
1103, 1108 (5th Cir. 1985) (citations omitted).
In considering BHL’s Motion, the threshold question is whether Joy’s participation in
GSSI’s Motion for Reconsideration constitutes an appearance. The Court concludes that it does.
When Joy joined in GSSI’s Motion for Reconsideration he was clearly seeking relief (other than
contesting jurisdiction) from the Court that was beneficial to him. Accordingly, he waived
service of process and brought himself within the Court’s jurisdiction on October 20, 2016.
Whether his participation on that date warrants an entry of default judgment against him,
however, is a separate question.
“The Federal Rules of Civil Procedure are designed for the just, speedy, and inexpensive
disposition of cases on their merits, not for the termination of litigation by procedural
maneuver.” Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir.
1989). “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) (per
curiam). Thus, default judgments are “only appropriate where there has been a clear record of
delay or contumacious conduct,” Turner v. Salvatierra, 580 F.2d 199, 201 (5th Cir. 1978)
(citations omitted), such as “when the adversary process has been halted by an essentially nonresponsive party,” Sun Bank, 874 F.2d at 276 (citation and internal quotation marks omitted).
Because a defendant is entitled to an opportunity to present a defense before suffering a default
judgment, if the defendant has made an appearance sufficient to show the plaintiff the
defendant’s intention to defend, default judgment is inappropriate. Nava v. RM Detailing, Inc.,
CIV A H-06-1172, 2007 WL 207291, at *1 (S.D. Tex. Jan. 23, 2007) (collecting cases).
Importantly, the fact that a defendant is technically in default does not entitle a plaintiff to
a default judgment as a matter of right. Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996) (per
curiam) (citation omitted). Rather, the entry of default judgment is committed to the discretion of
the district court. Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977) (citing 10A Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2685 (3d ed. 1998)). District
courts consider six factors when deciding whether to grant a default judgment: (1) whether the
default was caused by a good-faith mistake or excusable neglect; (2) whether there has been
substantial prejudice; (3) the harshness of a default; (4) whether there are material issues of fact;
(5) whether grounds for a default judgment are clearly established; and (6) whether the court
would think it was obligated to set aside the default on the defendant’s motion. Lindsey v. Prive
Corp., 161 F.3d 886, 893 (5th Cir. 1998) (citing Miller, et al., Federal Practice & Procedure §
2685 (2d ed. 1983)).
Here, the Court concludes that the balance of factors does not weigh in favor of a default
judgment. Although Joy did not answer the FAC after he appeared on October 20, 2016, the
Court believes his failure to do so was excusable. Moreover, by joining the Motion for
Reconsideration, he made his intention to defend the case against him apparent to BHL. Nor
does the Court believe that not granting BHL’s Motion will cause it substantial prejudice. It is
still early in the proceedings, discovery has been stayed, and there are a number of dispositive
motions pending before the Court. Indeed, a default judgment would be unnecessarily harsh in
these circumstances and the Court is of the opinion that it would be obligated to set aside the
default at a later date. Accordingly, BHL’s Motion for Default is denied.
Joy’s Motion to Extend
Joy asks this Court to extend the time to answer BHL’s FAC “until 14 days after notice
of the Court’s disposition of Joy’s pending Rule 12(b)(6) motion.” Doc. 318 at 2. Joy asserts that
“good cause exists because this limited extension of time to answer will eliminate the need for
duplicative pleadings and streamline the issues for discovery.” Id. at 3. Joy also argues that his
Motion to Extend is warranted because “[u]nder Fed. R. Civ. P. 12(a)(4)(A), serving ‘a motion’
to dismiss extends the time for a party to file a responsive pleading until ‘14 days after notice of
the court’s action’ on that motion.” Id. In response, BHL renews the arguments that it presented
in its Motion for Default Judgment, namely that the deadline for Joy to answer or otherwise
defend has long passed and he should not be afforded any further extensions of time. Doc. 329 at
Under Rule 6(b) the Court may extend deadlines “for good cause.” Fed. R. Civ. P. 6(b).
After the expiration of a specified period, the deadline may be extended upon motion by a party
and a showing of “excusable neglect.” Id. “Although inadvertence, ignorance of the rules, or
mistakes construing the rules do not usually constitute ‘excusable’ neglect, it is clear that
‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic concept’ and is not limited strictly to
omissions caused by circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 392, 113 S. Ct. 1489, 1496, 123 L. Ed. 2d 74
(1993) (citations omitted). Whether the movant’s neglectful conduct is excusable involves an
equitable determination. Id. The courts consider a number of factors in making this
determination. Id. These factors include the danger of prejudice to the nonmoving party, the
length of delay and the delay’s potential impact on the judicial proceedings, the reason for the
delay, including whether the delay was within the reasonable control of the movant, and whether
the movant acted in good faith. Id.
In this case, the Court believes that the factors weigh in favor of a finding of no excusable
neglect. Joy’s Motion for Extension presents no prejudice to BHL and occurred relatively early
in the litigation. At the current stage, the continued participation of a number of parties and the
viability of the amended claims contained in the FAC are in question. Accordingly, the Court
agrees with Joy that “[t]his limited extension of time will streamline discovery, simplify future
proceedings, and promote judicial efficiency.” Doc. 318 at 1. Joy’s Motion for Extension is,
For the foregoing reasons, it is hereby
ORDERED that BHL’s Motion for Post-Appearance Default Judgment, or Alternatively,
for Order Requiring Defendant Joy to File Answer, Doc. 312, is DENIED. It is further
ORDERED that Defendant Joy’s Opposed Motion for Extension of Time to File
Answer, Doc. 318, is GRANTED.
SIGNED at Houston, Texas, this 19th day of April, 2017.
UNITED STATES DISTRICT JUDGE
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