IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LUCAS HORTON, §

Plaintiff, §

§

vs. § Civil Action No. 3:22-CV-2475-E-BH

§

360 DIGITAL MEDIA, LLC, §

Defendant. § Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, the plaintiff’s Motion for Default Judgment,

filed January 4, 2023 (doc. 11), should be DENIED.

I. BACKGROUND

Lucas Horton (Plaintiff) sues 360 Digital Media, LLC (Defendant) for alleged violations of

47 U.S.C. §§ 227(b)(1)(A) and 227(c)(3)(F) of the Telephone Consumer Protection Act (TCPA),

47 C.F.R. §§ 64.1200(d)(1) and (4), and §§ 305.053 and 302.101 of the Texas Business and

Commerce Code. (doc. 3 at 5-8.)2

Plaintiff contends that he is the owner and customary user of a cell phone number ending in

9931 who has been on the national do not call (DNC) list since 2011. (Id. at 3.) Prior to receiving

texts from it, he had no prior relationship with Defendant and had never requested it offer him any

services, and at no time did he provide it, its agents, or its third party marketers his cell phone

number or consent to the receipt of texts from them. (Id.) He began receiving unwanted texts in

March 2021, and on May 10, 2021, he filed suit against Defendant in small claims court for the texts

he had received prior to that time. (Id.) The parties settled the case, and Plaintiff dismissed it on June

1

By Special Order 3-251, this pro se case has been automatically referred for full case management.

2

 Citations to the record refer to the CM/ECF system page number at the top of each page rather than the

page numbers at the bottom of each filing.

Case 3:22-cv-02475-E-BN Document 15 Filed 08/30/23 Page 1 of 6 PageID 56
2, 2021. (Id.)

Despite the settlement, Defendant continued to text Plaintiff even while the lawsuit was

pending, and after its dismissal, it sent him 23 texts that “featured generic links to the Defendant’s

websites and were soliciting ghostwriting services.” (Id. at 3-4.) Not all texts contained “opt out

language”, but Plaintiff replied “STOP” to those that did, “yet the texts kept coming.” (Id. at 4.) He

claims that “[a]ll of the texts at issue were made on by or behalf of, for the benefit of, or with the

knowledge and with the approval of [] Defendant.” (Id.) “The calls came from spoofed Texas phone

numbers [in] an attempt to hide their identity because they know what they are doing is illegal. They

also use a various, fake business name for the same reason.” (Id. at 6.) The unauthorized texts caused

him “loss of productivity, the aggravation, nuisance and invasions of privacy ...[,] wear and tear on

his telephone, consumption of battery life, lost ability to place outgoing calls or texts and other

interruption in use, cellular minutes, loss of value realized for the monies he paid to his carrier for

the receipt of such calls, and other diminished use, enjoyment, value, and utility” of his cell phone.

(Id. at 4-5.) Because it had previously settled the prior lawsuit, Plaintiff claims that “Defendant (or

a third-party acting on their behalf and for their benefit) ... “intentionally, repeatedly, and willfully

violated the TCPA” by continuing to text him. (Id. at 5-7.) 

On November 4, 2022, Plaintiff filed this lawsuit against Defendant under the TCPA, its

implementing regulations, and the Texas Business and Commerce Code. (Id. at 5-8.) He seeks an

injunction requiring it “and its proxies to cease all unsolicited telephone calling activities to

consumers”, statutory damages (including treble damages), costs, and pre- and post-judgment

interest for 36 texts sent to his telephone between March 12, 2021 and October 19, 2022, including

13 texts received prior to his dismissal of his prior small claims court lawsuit against Defendant. 

2

Case 3:22-cv-02475-E-BN Document 15 Filed 08/30/23 Page 2 of 6 PageID 57
(Id. at 3-8.) He seeks treble damages of $1500 under §§ 227(b)(1)(A) and (c)(3)(F), §§

64.1200(d)(1) and (4), and § 305.053, plus $5000 under § 302.101, for a total of $234,000 in

damages. (Id. at 5-8.) 

Plaintiff’s complaint alleges that “according to the most recent filing with the Texas

Secretary of State,” Defendant’s registered agent is Salman Yousef at 1910 Pacific Avenue, Suite

8025, Dallas, Texas. (Id. at 3.) On December 29, 2022, he filed proof of service reflecting service

by a third party on an individual named Salman Yousef at 1910 Pacific Avenue, Suite 8025, Dallas,

Texas, on November 14, 2022, and he requested entry of default by the Clerk. (See docs. 7, 9.) The

next day, on December 30, 2022, he filed a document entitled, “Telephone Solicitors Search” for

“360 digital media” and a separate document entitled “Business Organizations Inquiry” reflecting

that the registered agent for “360 Digital Marketing LLC” is Salman Yousef at 1910 Pacific Avenue,

Suite 8025, Dallas, Texas. (docs. 8, 8-1.) The Clerk entered default against Defendant, which is

similarly named as “360 Digital Media LLC”, on December 30, 2022. (doc. 10.) Plaintiff moved for

default judgment against Defendant on January 4, 2023. (doc. 11.) On August 29, 2023, the Clerk

withdrew the entry of default because the proof of service does not appear to comply with Fed. R.

Civ. P. 4. (See doc. 14.)

II. DEFAULT JUDGMENT

Rule 55 sets forth the conditions under which default may be entered against a party, as well

as the procedure for seekng the entry of default judgment. See Fed. R. Civ. P. 55. A default occurs

when a party “has failed to plead or otherwise defend” against an action. Fed. R. Civ. P. 55(a); N.Y.

Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). An entry of default must be entered by the

clerk when the default is established “by affidavit or otherwise.” See id.; N.Y. Life Ins., 84 F.3d at

3

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141; see also Jefferson v. Louisiana Dept. of Public Safety and Corrections, 401 F. App’x 927, 929

(5th Cir. 2010) (“There are two steps in the default judgment process—one for the clerk, and one

for the court. The first step is entry of default. If the plaintiff files a sufficient application for entry

of default, “the clerk must enter the party’s default.”). After entry of default, a party may apply to

the clerk or the court for a default judgment. See Fed. R. Civ. P. 55(b); N.Y. Life Ins., 84 F.3d at

141; Jefferson, 401 F. App’x at 929 (“The second step is consideration of a default judgment.”);

Alvarado Martinez v. Eltman Law, P.C., 444 F.Supp. 3d 748, 752 (N.D. Tex. 2020) (“Once default

has been entered, the court may enter a default judgment against the defaulting defendant upon

motion of the plaintiff.”).

Here, while the Clerk initially entered default against Defendant, the entry of default has

now been withdrawn because the proof of service does not appear to comply with Rule 4. (See doc.

13.) Withdrawal appears appropriate because Plaintiff filed proof of service on the registered agent

for “360 Digital Marketing LLC”, but Defendant is named “360 Digital Media LLC”. There is no

evidence in the record that Plaintiff has served Defendant. Notwithstanding the Clerk’s withdrawal

of the entry of default, and to the extent required, this constitutes good cause to set it aside. See Fed.

R. Civ. P. 55(c); Koerner v. CMR Const. & Roofing, L.L.C., 910 F.3d 221, 225 (5th Cir. 2018) .

Plaintiff cannot satisfy the second requirement for a default judgment, i.e., entry of default.

 Without entry of default, there is no basis for entry of a default judgment. See Coleman v.

FEMA, No. 3:18-CV-3408-M-BH, 2019 WL 2124897, at *1 (N.D. Tex. Apr. 9, 2019); see also Fed.

R. Civ. P. 55(b); N.Y. Life Ins., 84 F.3d at 141; Jefferson, 401 F. App’x at 929; Alvarado Martinez,

444 F.Supp. 3d at 752. Moreover, “a party is not entitled to a default judgment as a matter of right,

even where the defendant is technically in default.” Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001)

4

Case 3:22-cv-02475-E-BN Document 15 Filed 08/30/23 Page 4 of 6 PageID 59
(quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996)). “In fact, ‘[d]efault judgments are a

drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme

situations.’” Lewis, 236 F.3d at 767 (quoting Sun Bank of Ocala v. Pelican Homestead & Sav. Ass’n,

874 F.2d 274, 276 (5th Cir. 1989)). Here, because the entry of default in this case has been

withdrawn, entry of default judgment against the defendant is not warranted. See Broad. Music, Inc.

v. Double V&S, LLC, No. CV SA-16-CA-1228-XR, 2017 WL 7052272, at *2 (W.D. Tex. Nov. 7,

2017) (denying motion for default judgment where entry of default was erroneous); Easterling v.

U.S. Bank Nat’l Ass’n, No. 3:18-CV-2528-C-BH, 2019 WL 507277, at *3 (N.D. Tex. Jan. 24, 2019)

(finding that the plaintiff was not entitled to default judgment as a matter of right because it had been

recommended that the entry of default be set aside, so he could not satisfy the second requirement

for a default judgment), report and recommendation adopted, No. 3:18-CV-2528-C-BH, 2019 WL

502042 (N.D. Tex. Feb. 8, 2019). 

III. RECOMMENDATION 

Plaintiff’s motion for default judgment should be DENIED. 

SO RECOMMENDED on this 30th day of August, 2023. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

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

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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