United Van Lines, LLC v. Lerner et al
ORDER AND OPINION denying 10 Motion for Default Judgment.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
UNITED VAN LINES, LLC,
ANTHONY LERNER and
March 06, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 4:17-CV-1442
ORDER AND OPINION
Pending before the Court in the above-referenced cause, grounded in the Interstate
Commerce Act (“ICA” or the “Act”), 49 U.S.C. §§ 14705, 13706, and 13702, is Plaintiff United
Vane Lines, LLC’s (“United”) Motion for Default Judgment (“Motion”) against Defendants
Anthony Lerner and Jennifer Lerner (collectively, “Lerners”). Doc. 10. After careful
consideration of the filings, record, and law, the Court denies Plaintiff’s motion.
Plaintiff seeks $31,856.86 for breach of contract, unjust enrichment, promissory estoppel,
$3,900 in attorney’s fees and $767.50 in costs under Texas Civil Practice and Remedies Code
Section 38.001, pre-judgment interest of 6% under Texas Finance Code Section 302.002, and
post-judgment interest at the “federally-provided rate.” Docs. 1 at 5, 10 at 2, 10-5 at 3.
I. Allegations of United’s Complaint and Motion for Default Judgment
According to United’s Complaint, the Lerners “hired United to move their household
goods from Stamford, Connecticut to Houston, Texas.” Doc. 1 ¶ 9. United then loaded the goods
from Lerners’ residence in Stamford, and shipped the goods to Lerners’ Texas residence under
Bill of Lading No. U0382-00655-6 and “United’s tariff provisions.” Id. ¶ 10, 15. The tariff
provisions were published as required by the ICA. Id. ¶ 15. The goods arrived in Houston, Texas
“on or around August 8, 2016 and August 15, 2016,” Id. ¶ 13, but the Lerners did not pay the
shipping and tariff invoice totaling $31,856.86, Id. ¶ 14–16.
In support of its complaint, United attaches its bill of lading and invoice. The Bill of
Lading, signed by “Anthony Lerner,” makes the customer responsible for “all freight and other
charges accruing on account of shipment in accordance with applicable tariffs or contract rate
schedules.” The Bill of Lading also makes the “owner of the goods . . . primarily liable for
payment in the Event the Carrier extends credit.” Id. ¶ 11–12, 1-2 at 6 (Section 7). In the invoice
dated August 24, 2016, United bills “A. Lerner” for $31,856.86. Doc. 1-3.
United served the Lerners with its Complaint on May 11, 2015 by leaving both sets of
documents with Jennifer Lerner. Docs. 6 at 3, 7 at 3. To date, the Lerners have not filed an
answer or any other responsive pleading with the Court. Doc. 10 at 1. United next requested
entry of default against the Lerners, Doc. 8, which the Clerk signed on December 12, 2017, Doc.
Accordingly, United now moves for final default judgment asking for $31,856.86 for
breach of contract, unjust enrichment, promissory estoppel, attorney’s fees and costs, pre and
post-judgment interest. Docs. 1 at 5; 10 at 2. United attached to its Motion for Default its
Complaint, proof of service, request for default, United’s affidavit, detailing the losses sustained,
Doc. 10-4, and an affidavit of its attorney, Vic Henry, concerning attorney’s fees and costs, Doc.
II. Legal Standards and Discussion
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). Following entry of the clerk’s default, the Court
may enter a final default judgment. Fed. R. Civ. P. 55(b). Local Rule 5.5 requires that a motion
for default judgment be served upon the defendant via certified mail, return receipt requested.
S.D. Tex. L.R. 5.5.
Yet, “a defendant’s default does not in itself warrant the court in entering a default
judgment. There must be a sufficient basis in the pleadings for the judgment entered.”
Nishimatsu Const. Co., Ltd. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). When
considering the motion for default judgment, the court should accept as true all well-pleaded
allegations of fact in the complaint and a defendant is barred from contesting those facts on
appeal. Id.; Wooten v. McDonald Transit Associates, Inc., 788 F.3d 490, 496 (5th Cir. 2015)
(holding that a defendant does not admit facts that are not well-pleaded or to admit conclusions
of law.) As to damages, a default judgment may be entered if the plaintiff’s claim is for a sum
certain or a sum which can be made certain by computation; otherwise, the court must hold a
hearing to determine the appropriate award. Richardson v. Salvation Army, 161 F.3d 7, *1 (5th
To determine if a default judgment should be entered against a defendant, courts apply a
two-step analysis. Entizne v. Smith Moorevision, LLC, No. 3:13–CV–2997–B, 2014 WL
1612394, at *1 (N.D. Tex. Apr. 22, 2014) (citing Ins. Co. of the W. v. H & G Contractors, Inc.,
No. C10–390, 2011 WL 4738179, at *2–3 (S.D. Tex. Oct. 5, 2011)). First, the court decides
whether entry of default judgment is appropriate under the circumstances. Id. (citing Lindsey v.
Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998)). The court considers the following factors to
resolve the issue: (1) whether material issues of fact exist; (2) whether there has been substantial
prejudice; (3) whether the grounds for default are clearly established; (4) whether the default was
caused by a good faith mistake or excusable neglect; (5) the harshness of a default judgment; and
(6) whether the court would find itself obliged to set aside the default on the defendant’s motion.
Id. As a second step, the court weighs the merits of the plaintiff’s claims and must find an
adequate basis in the pleadings to support a default judgment. Id. (citing Nishimatsu, 515 F.2d at
Here, the Court finds that United has not satisfied Local Rule 5.5. United did not satisfy
Local Rule 5.5 by mailing a copy of the Motion to Lerners via certified mail, return receipt
requested. Doc. 10. Without compliance with Local Rule 5.5, the Court will not grant default
In anticipation of United’s eventual compliance, the Court expresses two additional
concerns that weigh in the factors it considers before granting default judgment: United’s
complaint is not well-pleaded.
It’s complaint has not sufficiently articulated its theory of
liability against Jennifer Lerner. First, United has not pled how the Interstate Commerce Act, 49
U.S.C. §§ 14705, 13706, and 13702, is implicated or how the ICA ties into United’s breach of
contract, unjust enrichment, and promissory estoppel claims, if at all. Doc. 1. Second, United has
not indicated how Jennifer Lerner is liable. United does not claim that Jennifer Lerner signed the
Bill of Lading, but makes bare allegations against her for breach of contract, quasi contract, and
promissory estoppel claims. Id.; see Wooten, 788 F.3d at 496; Nishimatsu, 515 F.2d at 1206. The
Court expresses no opinion on how counsel should address these concerns.
In sum, the Court holds that entry of default judgment inappropriate at this time.
For the foregoing reasons, it is hereby
ORDERED that United’s motion for default judgment, Doc. 10, is DENIED without
prejudice and may be re-urged.
SIGNED at Houston, Texas, this 5th day of March, 2018.
UNITED STATES DISTRICT JUDGE
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