IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

CHANTOVIA JACKSON, § 

 § 

Plaintiff, § 

 § 

V. § No. 3:22-cv-1687-N-BN 

 § 

CHICK AND SEAFOOD INC., ET AL., § 

 § 

Defendants. § 

MEMORANDUM OPINION AND ORDER REGARDING DEFAULT 

In this employment action, raising claims under Title VII, 42 U.S.C. § 1981, 

and the Fair Labor Standards Act, the Court granted counsel’s motions for leave to 

withdraw as attorney of record for Defendants Chick and Seafood Inc. (“CSI”), Grand 

HBL, LLC (“Grand HBL”), and Linda Henderson. See Dkt. Nos. 32-35. 

Chief United States District Judge David C. Godbey then referred this action 

to the undersigned United States magistrate judge for pretrial management under 

28 U.S.C. § 636(b). See Dkt. No. 36. 

Prior to referring this case to the undersigned, the Court granted Plaintiff 

Chantovia Jackson leave to file a Second Amended Complaint (the “SAC”). See Dkt. 

No. 30. And the SAC, adding a new individual defendant, Amjad Elatrash, was filed 

on June 29, 2023. See Dkt. No. 31. 

As to CSI and Grand HBL’s failure to retain new counsel and direct counsel to 

enter an appearance on the record, see Dkt. No. 37, the undersigned entered findings 

of fact and conclusions of law on October 13, 2023 recommending that the Court order 

that CSI’s answer [Dkt. No. 8] and Grand HBL’s answer [Dkt. No. 21] be stricken; 

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order that both CSI and Grand HBL are in default; direct that the Clerk of Court 

enter default against CSI and Grand HBL under Federal Rule of Civil Procedure 

55(a); and order that Jackson move (by no later than a date 30 days from the date of 

entry of any order accepting or adopting the recommendations) for default judgment 

against CSI and Grand HBL for their failure to appear by and through counsel [Dkt. 

No. 38] (the “FCR”). 

The FCR did not apply to the individual defendants, who can respond to the 

SAC pro se, if necessary. But, because neither individual defendant had responded to 

the SAC, the Court also entered an order on October 13 requiring that, by November 

6, 2023, Jackson “either (1) file a status report advising the Court if Jackson does not 

believe that either individual defendant (or both) is in default after having been 

properly served with process in this case or (2) seek entry of default and file a motion 

for default judgment against either individual defendant – or both.” Dkt. No. 39; see 

also N.D. TEX. L. CIV. R. 55.1 (“If a defendant has been in default for 90 days, the 

presiding judge may require the plaintiff to move for entry of a default and a default 

judgment. If the plaintiff fails to do so within the prescribed time, the presiding judge 

will dismiss the action, without prejudice, as to that defendant.”). 

Jackson responded on November 6 by filing Plaintiff’s Status Report and 

Motion to Deem Defendant Elatrash Served [Dkt. No. 40] and moving for default 

judgment against CSI, Grand HBL, and Henderson, see Dkt. No. 41. 

Starting with the motion for default judgment, the motion is premature. 

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In this circuit, there is a required three-step procedure to obtain a default 

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

and (3) entry of default judgment by the district court. See N.Y. Life Ins. Co. v. Brown, 

84 F.3d 137, 141 (5th Cir. 1996) (defining “the terms regarding defaults”). 

As to CSI and Grand HBL, Chief Judge Godbey has not ruled on the FCR. So 

it has only been recommended (not ordered) that the Clerk of Court enter default 

against these defendants. 

And Jackson has not requested entry of default against Henderson. Cf. Lewis 

v. Morehouse Det. Ctr., Civ. A. No. 09-0332, 2010 WL 2360720, at *1 (W.D. La. Apr. 

30, 2010) (“Having set aside the Clerk’s entry of default against the individual 

defendants, plaintiff now lacks the requisite foundation for a default judgment 

against them.”), rec. adopted, 2010 WL 2360669 (W.D. La. June 9, 2010). 

Turning to Elatrash, Jackson reports: 

Elatrash is the owner of Chick and Seafood, Inc. (“CSI”), which 

operates the Henderson Chicken franchise at which Plaintiff worked 

when the events giving rise to her claims occurred. When Plaintiff was 

employed by CSI, she did not know Elatrash’s name, as he used the alias 

“Jim.” Plaintiff identified “Jim” in her Original Complaint and indicated 

her intention to amend her Complaint to add “Jim” as a Defendant as 

soon as she learned his identity. 

To that end, on April 3, 2023, counsel for Plaintiff conferred with 

then-counsel for the Defaulting Defendants, Bret Gerard, about 

Plaintiff’s Motion for Leave to File her Second Amended Complaint to 

add Elatrash as a Defendant. Mr. Gerard asked a question in response, 

but never responded to inform counsel for Plaintiff whether or not he 

opposed the Motion. Accordingly, on April 3, 2023, Plaintiff filed her 

Motion for Leave to Amend as an opposed Motion. On June 21, 2023, 

Plaintiff served a Request for Production upon Elatrash. On June 29, 

2023, having had no response to Plaintiff’s Motion for Leave, this Court 

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granted Plaintiff leave to file her Second Amended Complaint. 

On July 12, 2023, Mr. Gerard informed counsel for Plaintiff that 

he would be filing a motion to withdraw from his representation of 

Defendants Grand HBL, LLC, and Linda Henderson. Mr. Gerard 

specifically stated that he would continue to represent Defendants Chick 

and Seafood, Inc. and Elatrash. In a call on July 13, 2023, Mr. Gerard 

asked for an extension of time for Elatrash to respond to Plaintiff’s 

Request for Production, and Mr. Gerard further agreed to provide 

deposition dates for Elatrash’s deposition. Based on this call, counsel for 

Plaintiff understood that Mr. Gerard would answer on behalf of 

Elatrash. Mr. Gerard never answered on behalf of nor provided 

deposition dates for Elatrash. 

On August 3, 2023, Mr. Gerard indicated that he would be seeking 

to withdraw from his representation of CSI. Mr. Gerard further 

indicated he would not seek to withdraw from his representation of 

Elatrash because he never formally appeared on Elatrash’s behalf. On 

August 9, 2023, Plaintiff’s counsel sent Mr. Gerard a Notice of 

Deposition for Elatrash, scheduled for September 12, 2023. The Notice 

of Deposition identified Mr. Gerard as counsel for Elatrash. True and 

correct copies of the emails between Mr. Gerard and counsel for Plaintiff 

are attached hereto as Exhibit “A” and incorporated herein by reference. 

This Court granted Mr. Gerard’s motions to withdraw on August 

11, 2023. Elatrash never answered the lawsuit and, on September 12, 

2023, Elatrash did not appear for the noticed deposition. On October 13, 

2023, Plaintiff’s counsel attempted to confer via email with Elatrash 

about Elatrash’s failure to appear for his deposition. In response to this 

communication, Elatrash sent Plaintiff counsel a check for $200.00, 

which represents one-half the costs Plaintiff counsel identified in 

connection with the deposition. 

Given the above, Plaintiff contends that Elatrash can be deemed 

to have appeared herein and be subject to a default judgment. Plaintiff 

hereby requests this Court deem Defendant Elatrash served. After 

issuance of an Order deeming Defendant Elatrash served, Plaintiff will 

file a Motion for Default Judgment against Defendant Elatrash. 

Dkt. No. 40. 

As this report reflects, Elatrash has not been served with process in this 

lawsuit. 

Service of process is “fundamental to any procedural imposition on a named 

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defendant” and is therefore “the official trigger for responsive action by an individual 

or entity named defendant.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 

U.S. 344, 350, 353 (1999). 

Consequently, “[a] federal court is without personal jurisdiction over a 

defendant unless the defendant has been served with process in accordance with 

Federal Rule of Civil Procedure 4.” Naranjo v. Universal Sur. of Am., 679 F. Supp. 2d 

787, 795 (S.D. Tex. 2010) (citing Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 

U.S. 97, 104 (1987)); see also Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 

242 F.3d 322, 324 (5th Cir. 2001) (Because “[a] judgment without personal 

jurisdiction is void,” “a district court has the duty to assure it has the power to enter 

a valid default judgment.” (footnote omitted)). 

As to the SAC, the operative complaint, Jackson was not required to personally 

serve it on CSI, Grand HBL, and Henderson, as “personal service of the summons 

and complaint is not required in order to serve an amended complaint on parties who 

have already appeared in the litigation.” Taylor v. El Centro Coll., No. 3:21-cv-999-DBH, 2022 WL 581812, at *1 (N.D. Tex. Feb. 25, 2022) (citing Fluor Eng’rs & 

Constructors, Inc. v. S. Pac. Transp. Co., 753 F.2d 444, 449 n.7 (5th Cir. 1985) 

(Federal Rule of Civil Procedure 5 “facilitate[s] the pleadings process by permitting 

service on attorneys of record rather than the individual litigants once the parties are 

before the court.”); collected cases omitted), aff’d, 2022 WL 837210 (N.D. Tex. Mar. 

21, 2022). 

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But, aside from the procedure for waiver of service under Federal Rule of Civil 

Procedure 4(d), it is only proper to relax the formalities of service once a party is 

before the Court. See Fluor, 753 F.2d at 449 n.7 (holding that service under Rule 5 “is 

proper only after a party has appeared in an action”); 4B CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1146 (4th ed.) (“[I]t is clear 

that amended or supplemental pleadings must be served on parties who have not yet 

appeared in the action in conformity with Rule 4.”). 

So the Court may not “deem” Elatrash served. And, if Jackson intends to 

request entry of default and move for default judgment against Elatrash, she must 

first serve the SAC on him. The Court therefore DENIES Jackson’s motion embedded 

in the November 6 status report. 

SO ORDERED. 

DATED: November 7, 2023 

_________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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