IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GREGORY ALLEN CLAYBON, §

Plaintiff, §

vs. § Civil Action No. 3:22-CV-2185-S-BH

§

DALLAS COUNTY DISTRICT §

ATTORNEY, §

Defendant. § Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

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

Judgment, filed November 22, 2022 (doc. 11), should be DENIED.

I. BACKGROUND

On October 3, 2022, the pro se plaintiff sued the defendant, alleging that he had been illegally

arrested in December 1999 and illegitimately sent to prison for ten years. (See doc. 3 at 1.)2

 He claims

that his illegitimate five-year term of probation, which he had been coerced into accepting despite his

innocence, had expired in September 1998. (Id.) He also contends that his petition for writ of habeas

corpus was denied because the appellate attorney for the State knowingly submitted fictitious and

fabricated documents to the Court of Criminal Appeals. (Id. at 1-2.) 

On November 1, 2022, and November 7, 2022, the plaintiff filed proof of service indicating

that the defendant had been served with process on October 24, 2022. (See docs. 6, 7.) On November

14, 2022, the defendant moved to dismiss the complaint. (See doc. 8.) The plaintiff subsequently

moved for default judgment under Fed. R. Civ. P. 55(a), alleging that the defendant had failed to

timely file an answer to his complaint. (See doc. 11.)

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.

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II. ANALYSIS

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

as the procedure to seek the entry of default judgment. There is a three-step process for securing a

default judgment. See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). First a default

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

Next, 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 141. Third, a party may apply to the clerk or the court

for a default judgment after an entry of default. Fed. R. Civ. P. 55(b); N.Y. Life Ins., 84 F.3d at 141.

Here, the defendant has defended the case by timely filing a motion to dismiss within 21 days

of the date of service. See Rogers v. Barnhart, 365 F.Supp.2d 803, 808 (S.D. Tex. 2004) (citing Sun

Bank of Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 277 (5th Cir. 1989) (“the filing of

a motion to dismiss is normally considered to constitute an appearance”)). Because the defendant

timely appeared and defended the case, there is no basis for the Clerk of Court to enter a default under

Rule 55(a), even if the plaintiff had requested entry of default. Without a prior entry of default, a party

has no basis to seek a default judgment. 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) (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, 874 F.2d at 276).

Because the defendant has timely defended this action, and no default has been entered, entry

of default judgment is not warranted.

2

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III. RECOMMENDATION

The plaintiff’s motion for default judgment should be DENIED.

SIGNED this 25th day of November, 2022.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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

3

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