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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LUCAS HORTON,

 Plaintiff,

v.

ADVANTAGE ONE BROKERS CORP., 

Defendant.

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Case No. 3:22-cv-02474-B-BT

 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court in this pro se civil case is Plaintiff Lucas Horton’s Motion 

for Default Judgment (ECF No. 12). The District Judge referred this matter to the 

United States Magistrate Judge for pretrial management pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference. Order (ECF No. 6). For the reasons 

explained below, the District Court should DENY Horton’s Motion for Default 

Judgment against Defendant Advantage One Brokers Corp.

Background

This case arises from unwanted telephone calls that Plaintiff Lucas Horton 

allegedly received over the course of approximately eight months. Horton is a 

Texas resident who has had his cell phone registered on the National Do-Not-Call

(DNC) registry since 2011. Compl. 2-3 (ECF No. 3). Despite this, he alleges that 

starting around March of 2022, he received unwanted solicitation calls from 

“bogus companies like the senior benefits center, insurance care center, or 

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American benefits.” Compl. 6. After receiving these calls “for weeks” that he “didn’t 

keep track of,” Horton states that on March 23, 2022, he “attempt[ed] to find out 

who was behind the calls.” Compl. 6. After answering one of the calls, he spoke 

with a broker for Defendant Advantage One Brokers Corp. (Advantage One), who 

offered him a quote for life insurance. Compl. 6. Horton warned the broker that his 

call was in violation of the Telephone Consumer Protection Act (TCPA) and ended 

the conversation. Compl. 6. Horton avers that he began to track the numbers and 

unwanted calls and maintains that he was called by various numbers on several 

dates, including:

• 234-239-2068 on 4/1/2022

• 863-803-5670 on 8/15/2022

• 469-831-4936 on 8/17/2022

• 254-258-7118 on 8/22/2022

• 469-467-2216 on 8/23/2022

• 214-272-5398 on 8/26/2022

• 214-269-3183 on 8/26/2022

• 214-225-9245 on 8/26/2022

• 469-399-6722 on 8/29/2022

• 214-699-6164 on 9/1/2022

• 214-901-7281 on 9/8/2022

• 214-901-7462 on 9/8/2022

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• 214-901-7834 on 10/5/2022

• 979-317-6013 on 10/26/2022

• 214-901-7295 on 10/27/2022

• 214-901-7667 on 10/27/2022

• 214-433-2095 on 10/28/2022

• 214-901-7843 on 10/28/2022

• 254-263-4076 on 11/02/2022

• 214-901-7395 on 11/02/2022

Compl. 6. Horton avers that “[a]ll calls featured a beep, signifying an ATDS was 

used.” Compl. 6.

In response to these persistent calls, Horton filed this suit claiming that, 

relating to the twenty received calls ranging from 4/1/2022 to 11/02/2022,

Advantage One: (i) unlawfully used an automated telephone dialing system 

(ATDS) in violation of 47 U.S.C. § 227(b)(1)(A); (ii) continued to call his number 

registered on the DNC list in violation of 47 U.S.C. § 227(c)(3)(F); (iii) failed to 

maintain a written telemarketing policy in violation of 47 C.F.R. § 64.1200(d)(1); 

(iv) violated section 305.053 of the Texas Business & Commerce Code for its 

violations of the TCPA; (v) failed to identify themselves when calling Horton in 

violation of 47 C.F.R. § 64.1200(d)(4); (vi) failed to properly train telemarketing 

personnel in violation of 47 C.F.R. § 64.1200(d)(2); and (vii) engaged in telephone 

solicitations without a registered certificate in violation of section 302.101 of the 

Texas Business and Commerce Code. Compl. 9-11. He seeks $500 in TCPA 

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statutory damages per call, treble damages for willful conduct, statutory damages 

under Texas law for $5,000 per call, and costs. Compl. 12.

Horton filed his lawsuit on November 4, 2022, and later filed proof of service 

showing that a process server personally served the registered agent for Advantage 

One on November 11, 2022. Proof of Service (ECF No. 7). On January 3, 2023, 

Horton asked for an obtained a Clerk’s entry of default (ECF. No. 11). The next day, 

Horton filed his motion for default judgment. Advantage One has not responded 

to the motion or otherwise appeared in this lawsuit. 

Legal Standard

“When a party against whom a judgment for affirmative relief is sought has 

failed to plead or otherwise defend, . . . the clerk must enter the party's default.” 

Fed. R. Civ. P. 55(a). When a default has been entered, the factual allegations of 

the complaint are taken as true. U.S. For Use of M-CO Constr., Inc. v. Shipco Gen., 

Inc., 814 F.2d 1011, 1014 (5th Cir. 1987) (first citing Au Bon Pain Corp. v. Artect, 

Inc., 653 F.2d 61, 65 (2nd Cir. 1981); and then citing Nishimatsu Constr. Co. v. 

Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).

Once default has been entered, the Court may enter a default judgment 

against the defaulting defendant upon motion of the plaintiff. Fed. R. Civ. P. 

55(b)(2). Whether to enter default judgment is within the sound discretion of the 

court. N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996) (citing Mason v. 

Lister, 562 F.2d 343, 345 (5th Cir. 1977) (“[T]he entry of default judgment is 

committed to the discretion of the district judge.”)). “[A] ‘party is not entitled to a 

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default judgment as a matter of right, even where a defendant is technically in 

default.’” Id. (quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996) (per 

curiam)); accord Nat'l Cas. Co. v. KT2 LLC, 2021 WL 1338221, at *2 (N.D. Tex. 

Apr. 8, 2021) (Brown, J.). Default judgments are “disfavored” and there is “a strong 

policy in favor of decisions on the merits and against resolution of cases through 

default judgments.” Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998) 

(internal citations and quotations omitted). To determine whether to enter default 

judgment, the Court conducts a two-part analysis.

First, the Court examines whether a default judgment is appropriate under 

the circumstances, considering: (1) whether material issues of fact are at issue; (2) 

whether there has been substantial prejudice; (3) whether grounds for default are 

clearly established; (4) whether default was caused by good faith mistake or 

excusable neglect; (5) the harshness of the default judgment; and (6) whether the 

Court would feel obligated to set aside a default on the defendant's motion. 

Lindsey, 161 F.3d at 893 (citing 10 Charles Alan Wright et al., Federal Practice and 

Procedure § 2685 (2d ed. 1983)).

Second, the Court assesses the merits of a plaintiff's claims to determine 

whether a sufficient basis exists in the pleadings for the judgment. See Nishimatsu 

Constr., 515 F.2d at 1206. Although a defendant may be in default, “[t]he defendant 

is not held to admit facts that are not well-pleaded or to admit conclusions of law.” 

Id. However, “the requisite threshold for pleading sufficiency is lower on a motion 

for default judgment than on a motion to dismiss.” Edmond v. Marathon 

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Petroleum Co., LP, 2021 WL 619503, at *7 (W.D. Tex. Feb. 17, 2021) (citing 

Nishimatsu Constr., 515 F.2d at 1206).

Analysis

The Court first examines the procedural propriety of Horton’s Motion and 

then proceeds to address the merits of his claims to determine whether there is a 

sufficient basis for default judgment in the pleadings.

Many factors demonstrate that default judgment may be procedurally 

appropriate under the circumstances. There are no material facts at issue, because 

when a Defendant defaults, they admit to the plaintiff’s well-pleaded allegations of 

fact. While the default is technical in nature, Horton is prejudiced and harmed by 

the continued delay in this case which has been pending since November 2022. 

The grounds for default are clearly established, and a default judgment would not 

be unduly harsh as Defendant has been given notice of the action and had sufficient 

time to respond. Horton has not himself caused the non-response or delay. See 

Hunsinger v. 204S6TH LLC, 2022 WL 1110354, at *3 (N.D. Tex. Mar. 23, 2022) 

(Ramirez, J.), adopted by 2022 WL 1102864 (N.D. Tex. Apr. 13, 2022).

However, reviewing the final factor and step two of the default-judgment 

analysis indicates that entry of default judgment would be improper in this case. 

Taking all of Horton’s allegations as true still yields deficiencies in the substantive 

merits of his claims, and the Court would likely feel compelled to set aside a default 

judgment on the Defendant’s motion. Horton fails to allege any basis to show that 

the twenty calls were made by Advantage One or one of its agents, and he fails to 

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allege any factual basis for many of his claims relating to the twenty complainedof calls.

“Theories of direct and vicarious liability are both cognizable under the 

TCPA.” Cunningham v. Politi, 2019 WL 2519568, at *5 & n.11 (E.D. Tex. Apr. 30, 

2019) (noting that the Supreme Court adopted an FCC ruling applying federal 

common law principles of agency to TCPA violations under a theory of vicarious 

liability). A plaintiff may use either theory to base a claim under § 227(b) or 

§ 227(c). See Cunningham v. Nationwide Sec. Sols., Inc., 2017 WL 10486988, at 

*2 (N.D. Tex. Nov. 2, 2017) (§ 227(b)); 204S6TH LLC, 2022 WL 1110354, at *7

(§ 227(c)).

Under the TCPA, direct liability exists when an entity “initiates” a telephone 

call. See In re Joint Petition filed by Dish Network, LLC, 28 F.C.C. Rcd. at 6582 

¶ 24 (2013) (“[W]e clarify that a seller is not directly liable for a violation of the 

TCPA unless it initiates a call, but [the seller] may be held vicariously liable under 

federal common law agency principles for a TCPA violation by a third-party 

telemarketer.”). “Initiating” a telephone call means that the entity “takes the steps 

necessary to physically place a telephone call.” Cunningham v. Lifestyles Dev., 

LLC, 2019 WL 4282039, at *3 (E.D. Tex. Aug. 8, 2019).

An entity may also be vicariously liable for violations by third parties under 

the TCPA. “[A] defendant may be held vicariously liable for TCPA violations where 

the plaintiff establishes an agency relationship . . . between the defendant and a 

third-party caller.” Gomez v. Campbell-Ewald Co., 768 F.3d 871, 879 (9th Cir. 

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2014), aff’d, 136 S. Ct. 664 (2016); see Politi, 2019 WL 2519568, at *6. An agency 

relationship exists where a principal “manifests assent to [an agent] . . . that the 

agent shall act on the principal’s behalf and subject to the principal’s control.” 

Lifestyles Dev., LLC, 2019 WL 4282039, at *4 (quoting Restatement (Third) of 

Agency § 1.01 (Am. L. Inst. 2006)). “Agency is typically a factual issue, with the 

plaintiff at the pleading stage only required to allege a factual basis that gives rise 

to the inference of an agency relationship through the use of generalized as 

opposed to evidentiary facts.” Politi, 2019 WL 2519568, at *6 (quoting Mauer v. 

Am. Intercontinental Uni., Inc., 2016 WL 4651395, at *2 (N.D. Ill. Sept. 7, 2016)). 

“Three theories of agency could support a claim for vicarious liability: (1) actual 

authority; (2) apparent authority; and (3) ratification.” Lifestyles Dev., LLC, 2019 

WL 4282039, at *4. 

Specifically, even applying the lower standard of review for default 

judgments, Horton fails to allege that Advantage One is responsible for any of the 

calls at issue—omissions that are fatal to Horton’s claims of unlawful ATDS usage 

(Count I), unlawful calls to telephone numbers on the DNC list (Count II), and 

failure to identify (Count V). Indeed, Horton states that each call would have a 

person “saying they were calling from bogus companies like the senior benefits 

center, insurance care center, or American benefits,” not Advantage One.1 Compl. 

1 In another pro se TCPA case Horton is prosecuting in this District, he alleges 

another caller violated the statute using one of the phone numbers listed in his 

complaint. Compare Compl. 6 (noting a call from 469-399-6722 on 8/29/2022) 

with Amended Complaint at 7, Horton v. Everything Breaks, Inc., No. 22-02131 

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6. He does not allege any basis for the Court to infer that these “bogus companies” 

are related to Advantage One, so as to demonstrate direct liability; nor does he

provide any factual basis that the “bogus companies” had an agency relationship 

with Advantage One. In fact, he alleges almost nothing about the twenty calls other 

than general, conclusory statements that: “[a]ll of the calls at issue were made by, 

on behalf of, for the benefit of, with the knowledge and approval of the Defendant” 

and that “[a]ll calls featured a beep, signifying an ATDS was used.” Compl. 6, 7.

Moreover, he does not attempt to bring a claim for his 3/23 call with Advantage 

One’s broker—the only call where Horton alleges any identifying information of 

the calling party. Compl. 6. Accordingly, he is not entitled to default judgment on

Counts I, II, and V.

In addition, his claims for failure to maintain a telemarketing policy (Count 

III), failure to train on the telemarketing policy (Count VI), violations of Texas state 

law (Count IV), and unlawful engagement in telemarketing practices without a 

registration certificate (Count VII) also have no sufficient basis to grant default 

judgment. Critically, he solely requests “$1500 per call for Causes of Action 1-6 for 

the 20 calls received” and “$5000 per call for the 7th Cause of Action for the 20 

calls received.” Compl. 12. But Horton fails to allege any facts relating to those 

twenty telephone calls—he limits his factual allegations to a seemingly unrelated 

call with Advantage One. Indeed, his factual allegations regarding both his 

(N.D. Tex. Nov. 10, 2022), ECF No. 17 (noting a call from 469-399-6722 on 

8/29/2022).

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requests for an internal DNC policy and his claim for failure to train personnel on 

DNC lists discuss only to the 3/23 call with Advantage One’s broker, not any of the 

twenty purported unlawful telemarketing calls for which he seeks relief. Compl. 3. 

Further, he “tells” the Court the elements of section 302.101 of the Texas Business 

and Commerce Code but does not “explain” how this would allow the Court to 

conclude that any of the twenty other callers/entities—who have not been alleged 

to be affiliated with Advantage One—operates without a telemarketing registration 

certificate. Compl. 11; see Callier v. Defendant Home Loans, Inc., 2022 WL 

16858520, at *6 (W.D. Tex. Nov. 10, 2022) (citing Wagstaffe Group Practice Guide, 

Fed. Civ. Proc. Before Trial § 23-11 (2022)) (dismissing claims due to conclusory 

allegations). Therefore, Horton is not entitled to default judgment on Counts III, 

IV, VI, and VII.

Recommendation

For the reasons stated, the Court should DENY Plaintiff Lucas Horton’s 

Motion for Default Judgment.

SO RECOMMENDED.

June 5, 2023.

____________________________

REBECCA RUTHERFORD

UNITED STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of this report 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 report 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 

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

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