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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

EDWARD BENTON GLASS §

VS. § CIVIL ACTION NO. 2:23cv119

UPSHUR COUNTY MEDICAL, ET AL. §

REPORT AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff Edward Glass, an inmate currently confined at the Upshur County Jail, proceeding 

pro se and in forma pauperis, filed this civil rights lawsuit complaining of alleged violations of his 

constitutional rights. The case was referred to the undersigned United States Magistrate Judge for 

findings of fact, conclusions of law, and recommendations for the disposition of the case. 

The present Report concerns Plaintiff’s motion for default judgment, (Dkt. #15). For 

reasons explained below, the motion should be denied. 

I. Plaintiff’s Motion

Plaintiff seeks default judgment against Defendants, claiming they were served on April 1, 

2023, but “more than 20 days have elapsed since the Defendants herein were served with a copy 

of summons and plaintiff’s complaint excluding date thereof,” (Dkt. #15, pg. 1). He further states 

that Defendants have failed to answer or otherwise defend. 

II. Legal Standards

A default judgment may be entered only where there has been effective service of process. 

Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933. 937 (5th Cir. 1999). It is well-settled 

that absent proper service, a district court lacks personal jurisdiction over the defendants and a 

default judgment would be both void and improper. See Walters v. Dixon Correctional Inst., 188 

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F. App’x 232, 233 (5th Cir. 2006) (unpublished); Thompson v. Johnson, 348 F. App’x 919, 923

(5th Cir. 2009) (per curiam) (explaining that “until [a defendant] is properly served,” the plaintiff 

“cannot obtain a default judgment.”) (internal citations omitted). 

Default judgments are drastic remedies, not favored by the Federal Rules and resorted to 

only in extreme situations. Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). A party is not entitled 

to a default judgment as a matter of right, even where the defendant is technically in default. Id. 

Because it is preferential to determine an action on the merits, the court resolves any doubt as to 

whether default should be entered in favor of hearing the case on the merits. Lacy v. Sitel Corp., 

227 F.3d 290, 292 (5th Cir. 2000). 

III. Discussion and Analysis

Plaintiff’s motion should be denied. The summons were executed on May 22, 2023, (Dkt. 

##17, 18), and Defendants filed a timely answer on June 16, 2023, (Dkt. #19). Defendants 

subsequently filed a motion for summary judgment, (Dkt. #24), which remains pending at this 

time. Plaintiff’s motion is without merit. Defendants filed a timely answer and have responded to 

Plaintiff’s case as ordered by the Court. Defendants are not in default. 

RECOMMENDATION

Accordingly, it is recommended that Plaintiff Glass’s motion for default judgment, (Dkt. 

#15), be denied. 

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report. 

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a copy 

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shall bar that party from de novo review by the district judge of those findings, conclusions and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

____________________________________

ROY S. PAYNE

UNITED STATES MAGISTRATE JUDGE SIGNED this 3rd day of January, 2012. SIGNED this 8th day of November, 2023.

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