Hawbecker v. Hall

Filing 30

ORDER re 29 MOTION for Default Judgment against Defendant Hall filed by Paul Eric Hawbecker, ( Evidentiary Hearing set for 8/26/2015 9:30 AM before Judge Xavier Rodriguez); GRANTING 29 MOTION for Default Judgment as to liability against Defendant Hall filed by Paul Eric Hawbecker. Signed by Judge Xavier Rodriguez. (aej)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
PAUL ERIC HAWBECKER,

§
§
§
§
§
§
§
§
§

Plaintiff,
v.
MICHELLE MARIE HALL,
Defendant.

Civil Action No. 5:14-CV-1010-XR

ORDER
On this date the Court considered Plaintiff’s Motion for Default Judgment (docket no.
29). For the following reasons, the Court GRANTS the motion as to liability.
I.

BACKGROUND

Plaintiff Paul Eric Hawbecker filed his initial complaint on November 13, 2014, alleging
that Michelle Marie Hall made a series of libelous and defamatory statements about him via the
internet. (Docket no. 1). Hawbecker asserts that, sometime around April 2014, Hawbecker
discovered that Hall had created a Facebook page and made numerous posts to that page
indicating that Hawbecker sexually abused children, including Hall’s daughter. (Docket no. 1, at
4; Docket no. 1-1, at 2). The Facebook page also accused Hawbecker of taking pornographic
photos of Hall’s daughter and other children. (Docket no. 1-1, at 2). The page encouraged
others to spread the accusations against Hawbecker and indicated that Hall had already contacted
or attempted to contact Hawbecker’s employer, Facebook friends, and others.

(Id.)

Hawbecker’s complaint alleges that Hall committed libel and defamation in violation of Texas
Civil Practice & Remedies Code Section 73.001. Hawbecker, a resident of Texas, asserts that
Hall, a resident of Colorado, caused him damages in the amount of $251,020. (Docket no. 29, at
1

11).
Hall was originally served with the complaint on December 11, 2014. (See docket no.
18). Hall failed to answer the complaint by January 2, 2015, so Hawbecker moved for an entry
of default on January 6, 2015. (Docket no. 10). The Clerk entered default on January 7, 2015.
(Docket no. 11). However, on January 5, 2015, Hall, representing herself pro se, filed a Rule
12(b) motion to dismiss for lack of personal jurisdiction, improper service, and improper venue.
(Docket no. 12). The Court denied Hall’s motion with regard to venue and personal jurisdiction
on February 19, but noticed that proof of service was defective because it incorrectly named the
Defendant. (Docket no. 16). Therefore, the Court vacated the previous entry of default and
ordered Hawbecker to provide proper proof of service. (Id.) Hawbecker provided that proof of
service on April 1. (Docket no. 19).
Hawbecker again moved for entry of default on April 23, based on Hall’s continued
failure to file an answer. (Docket no. 21). The Court denied Hawbecker’s motion, but ordered
Hall to file an answer to the complaint by May 9, 2015. (Docket no. 22). Hall did not file an
answer by that date (nor has she done so since). Based on Hall’s continued failure to answer,
Hawbecker filed a third motion for entry of default on May 14 (docket no. 27), which the Clerk
granted (docket no. 28). Hawbecker then moved this Court to enter a default judgment on July
17. (Docket no. 29). Hawbecker’s Motion for Default Judgment asks for $251,020 in damages
and for permanent injunctive relief. (Id. at 10).
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 55(a) states a default judgment is proper “[w]hen a party
against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend.” FED. R. CIV. P. 55(a). A defendant's failure to respond is an admission of the plaintiff's

2

well-pleaded allegations of fact as to liability, but not damages. Jackson v. FIE Corp., 302 F.3d
515, 524–25 (5th Cir. 2002) (quoting Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515
F.2d 1200, 1206 (5th Cir. 1975)). A default judgment “must not differ in kind from, or exceed in
amount, what is demanded in the pleadings.” FED. R. CIV. P. 54(c). A hearing to decide the
amount of damages is unnecessary when that amount can be determined “with certainty by
reference to the pleadings and supporting documents.” James v. Frame, 6 F.3d 307, 310 (5th
Cir. 1993). However, when the amount of damages cannot be determined with such certainty, a
hearing to determine damages is necessary. Id.
III.

ANALYSIS

In Texas:
A libel is a defamation expressed in written or other graphic form that tends to
blacken the memory of the dead or that tends to injure a living person's reputation
and thereby expose the person to public hatred, contempt or ridicule, or financial
injury or to impeach any person's honesty, integrity, virtue, or reputation or to
publish the natural defects of anyone and thereby expose the person to public
hatred, ridicule, or financial injury.
TEX. CIV. PRAC. & REM. CODE § 73.001. In “libel . . . the issues are whether the utterance was
made, if it was false, if it damaged the complainant and if the speaker had any privilege.”
Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 678 (5th Cir. 2013) (citing Peshak v.
Greer, 13 S.W.3d 421, 426 (Tex. App.—Corpus Christi 2000, no pet)). There are two types of
libel – libel per se and libel per quod. Hancock v. Variyam, 400 S.W.3d 59, 63 (Tex. 2013)
(“Defamation is delineated into defamation per se and per quod.”). A statement is “defamatory
per se only if it falls within one of the following categories: (1) imputation of a crime; (2)
imputation of a loathsome disease; (3) injury to a person's office, business, profession, or calling;
or (4) imputation of sexual misconduct.” Downing v. Burns, 348 S.W.3d 415, 424 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). “[T]he law presumes the existence of some actual damages
3

in cases involving libel per se.” First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696, 702
(Tex. App.—Corpus Christi 1980, writ ref’d n.r.e.). “Such damages are purely personal and
cannot be measured by any fixed rule or standard.” Id.
Because default was entered against Defendant, the Court accepts all factual allegations
relating to liability as true. Jackson, 302 F.3d at 524–25. The Court therefore finds that: (1) Hall
created the Facebook page in question; (2) on that Facebook page, Hall accused Hawbecker, in
writing, of sexually assaulting Hall’s child and other children and of taking pornographic photos
of Hall’s child and other children; (3) the allegations on the Facebook page imputed a crime to
Hawbecker; (4) Hall’s allegations against Hawbecker are false; (5) Hall invited others to view
the Facebook page and attempted to disseminate the page to others, including Hawbecker’s
family, friends, and employer; (6) Hall’s false allegations have exposed Hawbecker to public
hatred, contempt, and ridicule; (7) Hall made her statements and pursued her course of action
with malice; and (8) no circumstances exist giving Hall any form of privilege to make her
statements.
Because Hall’s admittedly false allegations imputed a crime to Hawbecker, they
constitute libel per se. Downing, 348 S.W.3d at 424. In libel per se cases, actual damages may
be presumed. Ake, 606 S.W.2d at 702. Based upon these admitted allegations and other
supporting documentation, the Court concludes that the Motion for Default Judgment should be
granted as to liability.
The only remaining issue is the amount of damages to award to Hawbecker. Hawbecker
requested $251,020 in damages and injunctive relief in his Motion for Default Judgment.
However, in libel per se cases, “damages are purely personal and cannot be measured by any
fixed rule or standard.” Ake, 606 S.W.2d at 702. The damages in this case cannot be determined

4

“with certainty by reference to the pleadings and supporting documents.” James, 6 F.3d at 310.
Therefore, a hearing is necessary to determine appropriate damages and injunctive relief. See id.
IV.

CONCLUSION

Plaintiff’s Motion for Default Judgment (docket no. 29) is GRANTED as to liability.
The Court will conduct an evidentiary hearing to determine the proper amount of damages on
Wednesday, August 26, 2015 at 9:30 a.m.
It is so ORDERED.
SIGNED this 4th day of August, 2015.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

5