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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

ADNAN UMAIR JANJUA-VESSEL and 

UZMA JANJUA-VESSEL,

 Plaintiffs,

v.

JAY BRAY, et al.,

 Defendants.

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Civil Action No. 4:23-cv-766-ALM-KPJ

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court are the following motions:

• Plaintiffs Adnan Umair Janjua-Vessel and Uzma Janjua-Vessel’s (“Plaintiffs”) 

Motion for Default Judgment (the “First Motion for Default Judgment”) (Dkt. 19), 

to which Defendants Nationstar Mortgage LLC d/b/a Mr. Cooper (“Nationstar”), 

Jay Bray (“Bray”), and Christopher Marshall (“Marshall”) (collectively, the 

“Nationstar Defendants”) filed a response (the “Nationstar Response”) (Dkt. 21) 

and Defendant Barrett Daffin Frappier Turner & Engel, LLP’s (“Barrett Daffin”) 

(together with the Nationstar Defendants, “Defendants”) filed a response (the 

“Barrett Daffin Response”) (Dkt. 23); and

• Plaintiffs’ Motion for Default Judgment Against Defendants (the “Second Motion 

for Default Judgment”) (Dkt. 54) (together with the First Motion for Default 

Judgment, the “Motions for Default Judgment” (Dkts. 19; 54)), to which Bray and 

Marshall filed a response (the “Bray and Marshall Response”) (Dkt. 55).

For the reasons that follow, the Court recommends the Motions for Default Judgment (Dkts. 19; 

54) be DENIED.

I. BACKGROUND

On August 24, 2023, Plaintiffs, proceeding pro se, filed a complaint (the “Complaint”)

(Dkt. 1) against Defendants. Dkt. 1 at 1–2. Plaintiffs served summons on Nationstar on 

September 1, 2023, and on Barrett Daffin on September 5, 2023. See Dkt. 11–12. On 

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September 21, 2023, the Nationstar Defendants filed the Motion to Dismiss (the “Nationstar 

Motion to Dismiss”) (Dkt. 13),1 wherein they seek dismissal of Plaintiffs’ claims. Dkt. 13 at 8. On 

September 26, 2023, Barrett Daffin filed the Motion to Dismiss for Failure to State a Claim (the 

“Barrett Daffin Motion to Dismiss”) (Dkt. 15) (together with the Nationstar Motion to Dismiss

(Dkt. 13), the “Motions to Dismiss”) (Dkts. 13; 15), wherein it seeks dismissal of Plaintiffs’ 

claims. See Dkt. 15 at 8. On October 11, 2023, Plaintiffs filed the Opposition to Defendant’s 

Motion to Dismiss (Dkt. 16), wherein they address the arguments raised by the Nationstar Motion 

to Dismiss (Dkt. 13) but not the Barrett Daffin Motion to Dismiss (Dkt. 15). See Dkt. 16.

On October 17, 2023, Plaintiffs filed the Notice & Motion for Leave to File Motion for 

Default Judgment (the “Motion for Leave”) (Dkt. 18), wherein Plaintiffs request leave to file the 

First Motion for Default Judgment (Dkt. 19).2 Dkt. 18 at 2. On October 17, 2023, Plaintiffs also 

filed the First Motion for Default Judgment (Dkt. 19), wherein Plaintiffs represent that they did 

not receive service of the Barrett Daffin Motion to Dismiss (Dkt. 15) and thus, assert that Barrett 

Daffin has failed to respond as required by the Federal Rules of Civil Procedure. See Dkt. 19 at 2.

On October 17, 2023, the Nationstar Defendants filed the Nationstar Response (Dkt. 21), wherein 

they represent that although the First Motion for Default Judgment (Dkt. 19) is directed at Barrett 

Daffin, “[f]or the avoidance of doubt, [the Nationstar] Defendants previously responded to 

Plaintiffs’ suit” by filing the Nationstar Motion to Dismiss (Dkt. 13). Dkt. 21 at 1. On October 18, 

2023, Barrett Daffin filed the Barrett Daffin Response (Dkt. 23), wherein it represents that it 

appeared in this case by filing the Barrett Daffin Motion to Dismiss (Dkt. 15). See Dkt. 23 at 1.

1 Bray and Marshall joined the Nationstar Motion to Dismiss (Dkt. 13) before service was effectuated on them in this 

case. See Dkt. 36.

2 The Court granted the Motion for Leave (Dkt. 18) on July 3, 2024, because the First Motion for Default Judgment 

(Dkt. 19) was fully briefed by the parties. Dkt. 59.

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On December 19, 2023, the Court ordered Plaintiffs to serve Bray and Marshall because 

Plaintiffs had not yet served them pursuant to Federal Rule of Civil Procedure 4(m). See Dkt. 25 

at 1. On January 5, 2024, Plaintiffs attempted to serve Bray and Marshall through Nationstar’s 

registered agent. See Dkts. 30–32. On January 17, 2024, the Court ordered Plaintiffs to reeffectuate service on Bray and Marshall. See Dkt. 33 at 2. On January 18, 2024, Bray and Marshall 

returned waivers of service to “avoid unnecessary expenses of serving summons” because they 

had already joined Nationstar in filing the Nationstar Motion to Dismiss (Dkt. 13). See Dkts. 34–

36.

On May 1, 2024, Plaintiffs filed the Second Motion for Default Judgment (Dkt. 54), 

wherein Plaintiffs assert that Bray and Marshall did not serve Plaintiffs with a response to the 

Complaint (Dkt. 1) following their waiver of service. See Dkt. 54 at 2. On May 2, 2024, Bray and 

Marshall filed the Bray and Marshall Response (Dkt. 55), wherein they represent that Bray and 

Marshall joined Nationstar in filing the Nationstar Motion to Dismiss (Dkt. 13) and thus, have 

appeared and defended themselves in this lawsuit. Dkt. 55 at 1–2.

On June 27, 2024, the Court ordered Barrett Daffin to file a status report explaining if and 

when it served Plaintiffs with the Barrett Daffin Motion to Dismiss (Dkt. 15) because the certificate 

of service accompanying the Barrett Daffin Motion to Dismiss (Dkt. 15) states that Barrett Daffin 

“will send a true and correct copy to all parties.” See Dkt 56 at 1–3 (emphasis added). On June 28, 

2024, Barrett Daffin filed the Status Report on Service of Motion to Dismiss (the “Status Report”) 

(Dkt. 58) and re-filed the Barrett Daffin Motion to Dismiss (the “Second Barrett Daffin Motion to 

Dismiss”) (Dkt. 57). In the Status Report (Dkt. 58), Barrett Daffin informed the Court that the 

Barrett Daffin Motion to Dismiss (Dkt. 15) was not served on Plaintiffs. Dkt. 58 at 2. Barrett Daffin 

further represents that the failure to serve Plaintiffs “was not intentional[] and was an accident or 

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mistake” and asserts that “[c]ounsel for [Barrett Daffin] was out with Covid-19 on the date this 

was filed and a former employee was to mail the motion.” Id. Barrett Daffin finally represents that 

it re-filed the Barrett Daffin Motion to Dismiss (Dkt. 15) as the Second Barrett Daffin Motion to 

Dismiss (Dkt. 57) and that counsel mailed copies of the Barrett Daffin Motion to Dismiss 

(Dkt. 15), the Second Barrett Daffin Motion to Dismiss (Dkt. 57), and the Status Report (Dkt. 58) 

to Plaintiffs by regular mail and email. Dkt. 58 at 2. The certificate of service attached to the 

Second Barrett Daffin Motion to Dismiss (Dkt 57) also asserts that counsel “sent [a] true and 

correct copy to all parties” by regular mail and email. Dkt. 57 at 9.

II. LEGAL STANDARD

Rule 55 of the Federal Rules of Civil Procedure sets forth certain conditions under which 

default may be entered against a party, as well as the procedure to seek the entry of default 

judgment. See FED. R. CIV. P. 55. The Fifth Circuit requires a three-step process for securing a 

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

default occurs when a defendant has failed to plead or otherwise respond to the complaint within 

the time required by Rule 12 of the Federal Rules of Civil Procedure. FED. R. CIV. P. 55(a); New 

York Life Ins., 84 F.3d at 141. Next, an entry of default may be entered by the clerk when the 

default is established by affidavit or otherwise. FED. R. CIV. P. 55(a); New York Life Ins., 84 F.3d 

at 141. Third, a plaintiff may then apply to the clerk or the court for a default judgment after an 

entry of default. See FED. R. CIV. P. 55(b); New York Life Ins., 84 F.3d at 141.

III. ANALYSIS

Here, Plaintiffs have not requested an entry of default. Plaintiffs cannot obtain a default 

judgment until a default has been entered. See New York Life Ins. 84 F.3d at 141; see also 

Accredited Sur. & Cas. Co., Inc. v. Landlord’s Daiquiri Den, LLC, No. 22-cv-591, 2023 WL 

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11761514, at *4 (E.D. Tex. July 26, 2023) (“[C]ourts will analyze whether to enter default 

judgment only if the plaintiff has first satisfied certain procedural requirements.”); Lee v. 

Brotherhood of Maint. of Way Emps.-Burlington N. Sys. Fed’n, 139 F.R.D. 376, 380 (D. Minn. 

1991) (“[T]he Court notes that an entry of default is a prerequisite to a default judgment under 

Rule 55(b), and that no entry of default has been made in this case.”). Thus, before reaching the 

merits of Plaintiffs’ request for default judgment against Barrett Daffin, Bray, and Marshall, the 

Court must determine whether Barrett Daffin, Bray, and Marshall are in default. The Court finds 

that Barrett Daffin, Bray, and Marshall are not in default and, thus, an entry of default against them 

would not be appropriate.

In the First Motion for Default Judgment (Dkt. 19), Plaintiffs argue that Barrett Daffin 

“ha[d] 20 days to respond [to the Complaint (Dkt. 1)] and has failed to do so as required” because 

Barrett Daffin “has not served Plaintiff[s] [with] a response to the Complaint [(Dkt. 1)].” Dkt. 19 

at 2. Indeed, Barrett Daffin admitted that there is no record that the Barrett Daffin Motion to 

Dismiss (Dkt. 15) was served on Plaintiffs before the filing of the Status Report (Dkt. 58) on 

June 28, 2024. See Dkt. 58 at 2. However, a default occurs when “a party against whom a judgment 

for affirmative relief is sought has failed to plead or otherwise defend,” see FED. R. CIV. P. 55(a), 

and motions to dismiss are consistently held to constitute defending an action within the meaning 

of Rule 55(a). Saldana-Fountain v. United States, No. 15-cv-39, 2016 WL 626573, at *5 (W.D. 

Tex. Feb. 16, 2016) (collecting cases), aff'd, 693 F. App’x 295 (5th Cir. 2017). Although the Barrett 

Daffin Motion to Dismiss (Dkt. 15) was procedurally defective, “defaults are not favored by the 

law and any doubts usually will be resolved in favor of the defaulting party.” See 10A CHARLES 

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 2681 (3d ed. 2024)

(footnote omitted); see also Lee, 139 F.R.D. at 380 (finding that although the defendants did not 

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file their response to the complaint within twenty days and, thus, waived the asserted defense, the 

defendants were not necessarily in default because they responded to the complaint). Barrett Daffin 

has displayed a consistent intent to defend against Plaintiffs’ claims. Barrett Daffin timely filed 

the Barrett Daffin Motion to Dismiss (Dkt. 15). See Dkt. 15. Upon learning of its failure to properly 

serve Plaintiffs, Barrett Daffin promptly corrected its error and served the Barrett Daffin Motion 

to Dismiss (Dkt. 15) on Plaintiffs by both mail and email. See Dkt. 58 at 2. Further, Barrett Daffin 

filed and served the Second Barrett Daffin Motion to Dismiss (Dkt. 57), thereby reasserting its

intent to defend against Plaintiffs’ claims. See Dkt. 57. Thus, the Court finds that Barrett Daffin 

has not failed to plead or otherwise defend, despite the failure in timely serving the Barrett Daffin 

Motion to Dismiss (Dkt. 15). See Saldana-Fountain, 2016 WL 626573, at *6 (“While [p]laintiff 

was unfortunately not served with the . . . [d]efendants’ [m]otion until later, the . . . [d]efendants

have not ‘failed to plead or otherwise defend,’ because they timely filed a Rule 12 motion in 

response to . . . [the] [c]omplaint.” (citations omitted)).

Even if Barrett Daffin was technically in default as a result of their failure to serve Plaintiffs 

with the Barrett Daffin Motion to Dismiss (Dkt. 15), “[a] party is not entitled to a default judgment 

as a matter of right.” See Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996) (per curiam) (citing 

Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977)). “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 v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (alteration in original) (quoting Sun Bank of 

Ocala v. Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989)). “A defendant’s 

failure to meet a procedural time requirement is insufficient, standing alone, to warrant entry of 

default.” Surplus Source Grp., LLC v. Mid Am. Engine, Inc., No. 08-cv-49, 2008 WL 2704867, 

at *1 (E.D. Tex. July 7, 2008) (citing Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000)). Thus, 

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“when the plaintiff has made no showing of prejudice stemming from the defendant’s delay, a 

default judgment ‘should not be granted on the claim, without more, that the defendant ha[s] failed 

to meet a procedural time requirement.’” Waltner v. Aurora Loan Servs., L.L.C., 551 F. App’x 741, 

744 (5th Cir. 2013) (alteration in original) (quoting Mason & Hanger-Silas Mason Co. v. Metal 

Trades Council of Amarillo, Tex. & Vicinity, AFL-CIO, 726 F.2d 166, 168 (5th Cir. 1984) (per 

curiam)). Plaintiffs are not prejudiced by Barrett Daffin’s delay in serving the Barrett Daffin 

Motion to Dismiss (Dkt. 15). This case is still in its infancy as demonstrated by the Nationstar 

Motion to Dismiss (Dkt. 13), which is still pending before the Court. Further, after the delay in 

service became apparent, Barrett Daffin remedied its failure and served Plaintiffs with the Barrett 

Daffin Motion to Dismiss (Dkt. 15). See Dkt. 58 at 2.

Thus, in light of the disfavored nature of default judgment, the delay in serving Plaintiffs 

with the Barrett Daffin Motion to Dismiss (Dkt. 15) is not a sufficient reason to grant default 

judgment against Barrett Daffin. See Saldana-Fountain, 2016 WL 626573, at *7 (finding that a 

delay in serving the plaintiff with the motion to dismiss was not a sufficient reason to grant default 

judgment); see also Metro. Life Ins. Co. v. Johnson, No. 12-cv-630, 2013 WL 3363117, at *2–3

(E.D. Tex. July 3, 2013) (finding that a late filed answer was not an appropriate basis to support

“[t]he drastic remedy of a default judgment”).

In the Second Motion for Default Judgment (Dkt. 54), Plaintiffs argue that Bray and 

Marshall did not file an answer or a motion under Rule 12 within sixty days of their waiver of 

service. See Dkt. 54 at 2. However, Bray and Marshall joined Nationstar in filing the Nationstar 

Motion to Dismiss (Dkt. 13) seeking dismissal of Plaintiffs’ claims based on Rule 12(b)(6) for 

failure to state a claim. See Dkt. 13. Bray and Marshall took this action prior to Plaintiffs serving 

them process in this case and waived service of process on this basis. See Dkts. 34–36. Plaintiffs 

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have at all times been aware of Bray and Marshall’s intent to defend against Plaintiffs’ claims as 

demonstrated by their response to the Nationstar Motion to Dismiss (Dkt. 13). See Dkt. 16 at 5–8 

(detailing Plaintiffs’ response to Bray and Marshall’s dismissal argument). Default judgment is 

only appropriate “[w]hen a party against whom a judgment for affirmative relief is sought has 

failed to plead or otherwise defend.” See FED. R. CIV. P. 55(a). Because the filing of the Nationstar 

Motion to Dismiss (Dkt. 13) demonstrates that Bray and Marshall have otherwise defended the 

action, Rule 55 provides Plaintiffs no relief and entry of default is inappropriate. See Sun Bank of 

Ocala, 874 F.2d at 277 (“The filing of a motion to dismiss is normally considered to constitute an 

appearance . . . .” (citations omitted)); Guimaraes v. Nat’l Op. Rsch. Servs., Inc., No. 07-20592, 

2007 WL 2066310, at *1 (S.D. Fla. July 17, 2007) (“[T]he filing of a 12(b)(6) motion to dismiss 

for failure to state a claim upon which relief may be granted has been held to be sufficient action 

to preclude entry of default.” (collecting cases)).

Because Barrett Daffin, Bray, and Marshall have filed motions to dismiss, they are not in 

default and default judgment is not appropriate. Accordingly, the Motions for Default Judgment 

(Dkts. 19; 54) should be denied. See Dahlstrom v. Moore, No. 07-cv-229, 2007 WL 2908448, at *1 

(E.D. Tex. Oct. 3, 2007) (denying the plaintiff’s motion for default judgment because the 

defendants filed a motion to dismiss and were therefore defending against the plaintiff’s claims).

IV. RECOMMENDATION

For the foregoing reasons, the Court recommends that the Motions for Default Judgment 

(Dkts. 19; 54) be DENIED.

Within fourteen (14) days after service of the magistrate judge’s report, any party may 

serve and file written objections to the findings and recommendations of the magistrate judge. 

28 U.S.C. § 636(b)(1)(C).

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A party is entitled to de novo review by the district court of the findings and conclusions 

contained in this report only if specific objections are made, and failure to timely file written 

objections to any proposed findings, conclusions, and recommendations contained in this report 

shall bar an aggrieved party from appellate review of those factual findings and legal conclusions 

accepted by the district court, except on grounds of plain error, provided that the party has been 

served with notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 

474 U.S. 140, 148 (1985); see also Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) 

(extending the time to file objections from ten to fourteen days).

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