IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EDMUND S GEORGE,

 Plaintiff,

V.

ROBERT MYERS,

 Defendant.

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 No. 3:22-cv-983-S

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED

STATES MAGISTRATE JUDGE

Plaintiff Edmund S George (“Plaintiff”) filed a motion for entry of default 

judgment against Defendant Robert Myers (“Defendant”). See Dkt. No. 4. 

United States District Judge Karen Gren Scholer has referred this motion to 

the undersigned United States Magistrate Judge. See Dkt. Nos. 5 & 10.

For the reasons set forth below the undersigned recommends that the Court 

deny Plaintiff’s motion for Default Judgment.

Background

Plaintiff filed this action on May 3, 2022. See Dkt. No. 1. A summons was issued 

to Defendant on that same day. See Dkt. No. 3.

On July 7, 2022, Plaintiff filed this motion for default judgment, although there 

had been no entry of default as to Defendant. See Dkt. No. 4. Defendant then

appeared through counsel and filed an untimely answer to Plaintiff’s complaint on 

July 27, 2022. See Dkt. No. 7.

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Legal Standard and Analysis

“[A] defendant who fails to timely file an answer or a [Federal Rule of Civil 

Procedure] 12(b) motion risks [entry of] default.” Strukmyer, LLC v. Infinite Fin. 

Sols., Inc., No. 3:13-cv-3798-L, 2013 WL 6388563, at *3 (N.D. Tex. Dec. 5, 2013). A 

party is entitled to entry of a default by the clerk of court if the opposing party “has 

failed to plead or otherwise defend” as required by law – or, more specifically as 

applicable here, “has failed to plead or otherwise respond to the complaint within the 

time required by the Federal Rules.” See FED. R. CIV. P. 55(a) (“When a party against 

whom a judgment for affirmative relief is sought has failed to plead or otherwise 

defend, and that failure is shown by affidavit or otherwise, the clerk must enter the 

party’s default.”); New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996).

“This first step, entry of default, is a ministerial matter performed by the clerk 

and is a prerequisite to a later default judgment.” Am. S. Ins. Co. v. Buckley, No. 1:09-

CV-723, 2010 WL 5654105, at *3 (E.D. Tex. Dec. 28, 2010), rec. adopted, 2011 WL 

288604 (E.D. Tex. Jan. 27, 2011). As another judge in this district has explained, 

[i]n the Fifth Circuit, three steps are required to obtain a default 

judgment: (1) default by the defendant; (2) entry of default by the Clerk’s 

office; and (3) entry of a default judgment by the district court. New York 

Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). A default occurs 

when a defendant has failed to plead or otherwise respond to the 

complaint within the time required by the Federal Rules of Civil 

Procedure. Id. The clerk will enter default when default is established 

by an affidavit or otherwise. Id. After the clerk’s entry of default, a 

plaintiff may apply to the district court for a judgment based on such 

default. Id.

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Arch Ins. Co. v. WM Masters & Assocs., Inc., No. 3:12-cv-2092-M, 2013 WL 145502, 

at *2 (N.D. Tex. Jan. 14, 2013). If the court grants the application, that “is a default 

judgment.” Brown, 84 F.3d at 141.

Plaintiff is not entitled to a default judgment here. Plaintiff did not request –

and the Clerk of the Court has not made – an entry of default, which is a prerequisite 

to seeking a default judgment. And Defendant filed his answer after the time required 

by the Federal Rules but before any entry of default. “The Court has discretion to 

allow the late filing of an answer” and, here, need not be concerned with whether the 

late-filed answer can only be considered a “proposed” answer or should be construed 

as a motion to set aside a default. Metro. Life Ins. Co. v. Dailey, No. 3:12-cv-4174-GBN, 2013 WL 5190751, at *3, *4 (N.D. Tex. Sept. 16, 2013) (“When a defendant files 

a pleading subsequent to an entry of default, a court may construe it as a motion to 

set aside the default.”); see also Rojo v. Burger One LLC, No. 3:11-cv-2968-BN, 2014 

WL 3513001, at *3 (N.D. Tex. July 16, 2014).

Recommendation

The Court should deny the Motion for Default Judgment [Dkt. No. 4].

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

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specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

DATED: September 13, 2022

_________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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