Alexis v. Sessions et al

Filing 11

ORDER entered DENYING 7 MOTION for Default Judgment against All Defendants.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICHARD LAWRENCE ALEXIS,
Petitioner,
v.
JEFFERSON B. SESSIONS, U.S. Attorney
General, et al.,
Respondents.

§
§
§
§
§
§
§
§
§
§

July 27, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-1923

ORDER DENYING THE PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT
Richard Lawrence Alexis filed his writ of habeas corpus on June 11, 2018. Because the
defendants are federal officers, the responsive pleading is not due until 60 days after service of
summons and the petition. Fed. R. Civ. P. 12(a)(2).
On June 18, 2018, the court issued an Order of Service of Process to all defendants, directing
the government to answer or file a dispositive motion by July 18, 2018. The answer was due 26
days after service. The statutory deadline is August 21, 2018. The defendants filed an answer on
July 24, 2018, six (6) days late, and one day after Alexis filed his motion for default.
Even assuming proper service of the motion for default judgment, it is denied. The six-day
delay was within the statutory deadline and did not prejudice Alexis.
Rule 55(d) of the Federal Rules of Civil Procedure provides that “no judgment by default
shall be entered against the United States or any officer or agency thereof unless the claimant
establishes his claim or right to relief by evidence satisfactory to the court.” Default judgment
against the government cannot be granted based simply on the failure to file within a prescribed

deadline. Mason v. Lister, 562 F.2d 343 (5th Cir. 1977); United States v. McFerran, 568 F. Supp.
804 (S.D. Tex. 1983). Default is inappropriate when, as here, the government responds to the
complaint by answer or motion soon thereafter. 6 J. Moore, Moore’s Federal Practice § 55.12 at 55
(1982).
The defendants answered before a ruling on the motion for default judgment. The case is
still in its early stages. See Verity Instruments, Inc. v. KLA-Tencor Corp., No. 3:06–CV–0005–D,
2006 WL 929235, at *2 (N.D. Tex. Apr. 10, 2006) (requirement that plaintiffs litigate their claims
caused no unfair prejudice). Finally, defendants asserted multiple defenses in their answer, which
should be resolved on the merits. See Effjohn Int’l Cruise Holdings, Inc. v. A&L Sales, Inc., 346
F.3d 552 (5th Cir. 2003).
The defendants have answered the petition. See Rogers v. Barnhart, 365 F. Supp. 2d 803,
808 (S.D. Tex. 2004) (citing Sun Bank of Ocala v. Pelican Homestead and Sav. Ass’n, 874 F.2d 274,
277 (5th Cir. 1989)). There is no failure “to plead or otherwise defend.” Fed. R. Civ. P. 55(a); New
York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). The motion for Default Judgment,
(Docket Entry No. 7), is denied.
SIGNED on July 27, 2018, at Houston, Texas.
______________________________________
Lee H. Rosenthal
Chief United States District Judge

-2-