Ponder v. Wersant et al
ORDER denying 30 Notice OF PENDING REQUEST FOR CLERK TO ENTER DEFAULT AGAINST DEFENDANTS REQUIRING ACTION BY CLERK, 28 Request for Entry of Default, FURTHER ORDERED that Paul Gerard Wersant is provided fourteen days from the date of this order to file a responsive document(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
BRIAN LAMAR PONDER,
PAUL GERARD WERSANT, et al,
November 30, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-00537
OPINION AND ORDER
Pending in the above-referenced cause is Plaintiff Brian Ponder’s (“Ponder”) Motion for
Default against Defendants James E. Albertelli, P.A. d/b/a Albertelli Law (“James Albertelli”),
Coury Matthews Jacocks (“Jacocks”), Paul Gerard Wersant, Albertelli & Whitworth, P.A. d/b/a
Albertelli Law, Jamed Edward Albertelli d/b/a/ Albertelli Law and Albertelli & Whitworth, P.A.,
George David Whitworth d/b/a Albertelli Law and Albertelli & Withworth, P.A. (collectively,
“Remaining Defendants”), Doc. 28 (“Motion”), and Notice of the same Motion, Doc. 30. Having
considered the Motion, record, and relevant law, the Court denies Plaintiff’s Motion for Default.
This history of this case is detailed in a prior opinion and order dated September 5, 2017,
and incorporated herein. Doc. 27. Also, on October 18, 2017, Defendants, excepting Wersant
who no longer works at Albertelli Law, have filed a Motion to Dismiss Ponder’s Amended
Complaint. Doc. 31.
Ponder “respectfully requests the clerk to enter default against all defendants on the basis
that the record in this case demonstrates that there has been a failure to plead or otherwise defend
as provided by Rule 55(a) of the Federal Rules of Civil Procedure.” Doc. 28. More specifically,
he alleges Defendants “failed to plead” more than “fourteen (14) days” after the “Court denied
Defendants’ motion to dismiss” as required by Federal Rule of Civil Procedure 12(a)(4)(A). Doc.
28-1 at 2. In support of his request, he attaches a copy of the Summons and Complaint allegedly
served on James Albertelli and Jacocks. Docs. 28-1, 28-2, 28-3. And he asserts that the
Remaining Defendants appeared on April 12, 2017 by filing a motion to dismiss. Docs. 15, 28-1
I. Legal Standard
Rule 4 of the Federal Rules of Civil Procedure requires the plaintiff to serve a copy of the
summons and complaint on the defendant. Fed. R. Civ. P. 4(c)(1). If the opposing party then fails
to plead or otherwise defend as required by law, the serving party is entitled to entry of a default
by the clerk of the court. Fed. R. Civ. P. 55(a). Without proper service, there is no personal
jurisdiction over the Defendant and, thus, any default or default judgment that is entered is
“void.” See, e.g., Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th
Cir. 1988); Leedo Cabinetry v. James Sales & Distribution, Inc., 157 F.3d 410, 412 (5th Cir.
1998) (“When a district court lacks jurisdiction over a defendant because of lack of service of
process, the default judgment is void and must be set aside under Rule 60(b)(4).”); Paselk v.
Bayview Loan Servicing LLC, No. 6:16CV77-MHS-JDL, 2016 WL 7799629, at *2 (E.D. Tex.
July 21, 2016) (holding that the plaintiff did not meet their burden to prove that service was
proper and so did not warrant clerk’s entry of default or default judgment when service consisted
of “mailing the complaint to [the defendant’s prior, but not present attorney] and to a business
address for [the defendant] in Florida.”).
Even when the prerequisites of default are met, the Fifth Circuit still favors resolving
cases on their merits. In re Chinese–Mfr’d Drywall Prods. Liab. Litig., 742 F.3d 576, 594 (5th
Cir. 2014). A court counterbalances this policy with “considerations of social goals, justice and
expediency, a weighing process that lies largely within the domain of the trial judge's
discretion.” Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000) (quoting Rogers v. Hartford
Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir.1999)) (alterations and internal quotation
marks omitted). But defaults “are generally disfavored in the law and thus should not be granted
on the claim, without more, that the defendant had failed to meet a procedural time requirement.”
Id. (quotations omitted).
Also, our sister courts have held late filings of either answers, 12(b) motions, or leave for
an extension to file answers or 12(b) motions could preclude default, if filed even a few months
late. See, e.g., Neutron Depot, LLC v. Bankrate, Inc., 2:14-CV-192, 2016 WL 213029, at *1–2
(S.D. Tex. Jan. 19, 2016) (setting aside entry of default when the defendant filed an answer
approximately forty-nine days late and during the infancy of the case); Broder v. Charles Pfizer
& Co., 54 F.R.D. 583, 584 (S.D.N.Y. 1971) (setting aside entry of default when the defendants
mailed their motion for extension of time to file two weeks late); Mitchell v. Eaves, 24 F.R.D.
434, 435 (E.D. Tenn. 1959) (setting aside entry of default when the defendants waited
approximately three months beyond the time to file request entry of default be set aside). Our
sister courts have set aside default because they favor disposition on the merits. Neutron Depot,
LLC, 2016 WL 213029, at *1–2; Mitchell v. Eaves, 24 F.R.D. at 435; see Broder v. Charles
Pfizer & Co., 54 F.R.D. at 584. This Court also favors disposition on the merits.
This Court takes first the issue of default as to James Albertelli and Jacocks, against
whom Ponder alleges he served directly, and then default against the Remaining Defendants who
Ponder alleges appeared by filing a motion to dismiss.
Ponder alleges he served the Summons and Complaint on James Albertelli and Jacocks
by certified mail. Docs. 28-1, 28-2, 28-3. But the Court previously held that this certified mail
service “appears to have been improper,” as the Court explained below:
Indeed, the returns of service for Jacocks and Albertelli Law do not identify the
mailing address at which they were allegedly served. Nor is there is anything of
record establishing that the individuals listed on the returns were authorized to
accept service of process on behalf of Defendants. Accordingly, it does not appear
that process has been properly served pursuant to Fed. R. Civ. P. 4(e). Thus, entry
of default judgment was not appropriate and Defendants have a meritorious
defense. Price v. King, No. 209CV20-KS-MTP, 2009 WL 2368283, at *1 (S.D.
Miss. July 30, 2009) (citing Fed. R. Civ. P. 55; Arceneaux v. Davisdon, 325 F.
Supp. 2d 742, 744 (S.D. Miss. 2004)).
Doc. 27 at 4. Ponder provides the same certified mail service for James Albertelli, Doc. 10-3,
and Jacocks, Doc. 12-2, expecting a different result. Docs. 28-1, 28-2, 28-3. Ponder also provides
no new authority. Doc. 28. Because improper service deprives the Court, including its clerk, of
jurisdiction to enter default, the Court cannot permit a Clerk’s default upon James Albertelli and
Jacocks. Doc. 27 at 3–5; see Paselk, 2016 WL 7799629, at *2. Thus, the Court denies default as
to James Albertelli and Jacocks.
Next, Ponder requests the clerk to enter default against the Remaining Defendants, Doc.
28, and asserts that the Remaining Defendants appeared on April 12, 2017 by filing a motion to
dismiss, but did not plead or defend more than fourteen days after the Court denied the
Defendant’s motion to dismiss as required by Federal Rule of Civil Procedure 12(a)(4)(A). Docs.
15, 28-1 at 2. So, under Federal Rule of Civil Procedure Rule 55(a), Ponder concludes the Court
should grant default judgment against the Remaining Defendants. Doc. 28
But the Fifth Circuit disfavors defaults when, as here, the plaintiff does not allege more
than violation of a procedural time requirement. Lacy, 227 F.3d at 292. The Fifth Circuit favors
disposition on the merits. In re Chinese–Mfr’d Drywall Prods. Liab. Litig., 742 F.3d at 594.
While the Court will weigh the expediency of resolving cases against the Fifth Circuit’s
preference for merit-based dispositions, the weight of this scale is tipped towards disposition on
the merits. See Lacy, 227 F.3d at 292. And late filings may be excused so that the Court can
reach disposition on the merits. Neutron Depot, LLC, 2016 WL 213029, at *1–2.
Here, the Remaining Defendants waived the defense of service of process when they did
not raise that defense in the original motion to dismiss. Doc. 15; Fed. R. Civ. P. 12(h). Because
they did not challenge service of process, the Remaining Defendants next response was due
fourteen days from the Court’s order issued on September 5, 2017. Doc. 27; Fed. R. Civ. P.
12(a)(4)(A). Instead of filing fourteen days later, the Remaining Defendants filed another Motion
to Dismiss Ponder’s Amended Counterclaim on October 18, 2017, forty-three days later. Doc.
31. But forty-three days is not so distant that the Court is cannot reach the case on the merits and
preclude default. Neutron Depot, LLC, 2016 WL 213029, at *1–2. And Ponder provides no
indication that precluding default would prejudice him. Thus, the Court denies default as to the
Remaining Defendants, save Paul Gerard Wersant, who is not listed as a mover in the second
motion to dismiss. Yet, because the second motion to dismiss is potentially dispositive as to all
of Ponder’s claims, Paul Gerard Wersant is provided fourteen days from the date of this order to
file a responsive document.
For the foregoing reasons, it is hereby
ORDERED that Ponder’s motion for default is DENIED. Doc. 28.
IT IS FURTHER ORDERED that Paul Gerard Wersant is provided fourteen days from
the date of this order to file a responsive document as provided by Federal Rule of Civil
SIGNED at Houston, Texas, this 29th day of November, 2017.
UNITED STATES DISTRICT JUDGE
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