REPORT AND RECOMMENDATION 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

CIARRA PARSON,

Plaintiff,

v. 

MATTRESS DEPOT, LLC, 

d/b/a THE MATTRESS DEPOT, et al.,

Defendants.

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CIVIL ACTION NO. 4:23-CV-00526-

ALM-AGD

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

The above-referenced case was referred to the undersigned United States Magistrate Judge 

for pre-trial purposes in accordance with 28 U.S.C. § 636. Pending before the court is Plaintiff’s 

Original Complaint (Dkt. #1), Defendants’ Original Answer (Dkt. #7), and Plaintiff’s Motion for 

Default Judgment (Dkt. #22). Having reviewed the relevant pleadings and the procedural history 

of the instant matter, the court recommends that Defendants’ Original Answer (Dkt. #7) be stricken

and Plaintiff’s Motion for Default Judgment be denied without prejudice. 

BACKGROUND

On June 7, 2023, Plaintiff filed her Original Complaint against Defendants Mattress Depot, 

LLC and The Gaylord Group, Inc., each d/b/a The Mattress Depot (Dkt. #1). After receiving an 

extension of the answer deadline, Defendants filed their Original Answer on September 5, 2023 

(Dkt. #7). The parties then notified the court that they had reached a settlement and intended to 

enter an Agreed Judgment (Dkt. #9 at p. 3). The court ordered the parties to submit necessary 

closing documents by November 6, 2023 (Dkt. #10). On November 6, 2023, the parties requested 

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an extension of time to file an Agreed Judgment (Dkt. #11), which the court granted on November 

7, 2023 (Dkt. #12). 

On November 20, 2023, Plaintiff notified the court that the parties were unable to reach an 

agreement (Dkt. #13). Then, on January 29, 2024, counsel for Defendants filed an Unopposed 

Motion for Leave to Withdraw as Counsel (Dkt. #20), which the court granted on February 4, 2024 

(Dkt. #21). In the February 4, 2024, Order, the court informed Defendants that, as fictional legal 

persons, they were not permitted to proceed pro se (Dkt. #20 at p. 2). The court gave Defendants 

until March 5, 2024, to retain counsel (Dkt. #20 at p. 2). The court warned Defendants that if they 

“fail to retain counsel by the deadline, the court will take the necessary action to move the case 

forward, including but not limited to the court’s recommendation that any pleadings by Defendants 

be stricken.” (Dkt. #20 at p. 2). Following no action from Defendants, Plaintiff filed a Motion for 

Default Judgment on April 15, 2024 (Dkt. #22).

LEGAL STANDARD & ANALYSIS

Striking a Pleading

It is a “well-settled rule of law that a corporation cannot appear in federal court unless 

represented by a licensed attorney.” Memon v. Allied Domecq QSR, 385 F.3d 871, 873 (5th Cir. 

2004) (citing Rowland v. Cal. Men’s Colony, 506 U.S. 194, 202 (1993); S.W. Exp. Co. v. ICC, 670 

F.2d 53, 55 (5th Cir. 1982)). “Although 28 U.S.C. § 1654 authorizes individuals to appear in 

federal courts pro se, the statute is silent regarding corporations. The lack of authorization in 

§ 1654 has been interpreted as barring corporations from appearing in federal court without an 

attorney.” Id. (citing Rowland, 506 U.S. at 202). 

“[T]he appropriate measure for a judge to take when confronted with an unrepresented 

corporation is inherently discretionary.” Id. “[L]ower courts in the Fifth Circuit routinely strike 

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filings submitted by unrepresented corporate defendants acting pro se.” Murillo v. Coryell Cnty. 

Tradesmen, LLC, No. , 2016 WL 7441146, at *2 (E.D. La. Dec. 27, 2016). “In virtually every case 

in which a district court dismissed the claims (or struck the pleadings) of a corporation that 

appeared without counsel, the court expressly warned the corporation that it must retain counsel 

or formally ordered it to do so before dismissing the case.” Memon, 385 F.3d at 874 (citations 

omitted). 

On January 29, 2024, counsel for Defendants moved to withdraw from the instant matter 

because “Defendants failed on multiple occasions to fulfill their obligations to Platt Richmond in 

regard to Platt Richmond’s services as per the engagement agreement.” (Dkt. #20 at p. 3).

Additionally, the Motion to Withdraw stated that the attorney assigned to this matter was “leaving 

the law firm,” and “[t]herefore, continued representation of the Defendants has been rendered 

unreasonably difficult and will result in an unreasonable financial burden.” (Dkt. #20 at p.3). 

Counsel for Defendants informed the court that Defendants consented to the motion to withdraw 

(Dkt. #20 at p. 3). 

In granting Defendants’ counsel’s motion to withdraw, the court advised Defendants that 

they were unable to proceed pro se as fictional legal persons and must retain counsel within 30 

days of the Order or “the court will take necessary action . . . including but not limited to the court’s 

recommendation that any pleadings by Defendants be stricken.” (Dkt. #21 at p. 2). The court 

entered this Order on February 4, 2024. To date, Defendants have not retained counsel or informed 

the court of any action with regard to retention of new counsel. As such, Defendants remain 

unrepresented. Having expressly warned Defendants that the court will take action, including 

recommending that Defendants’ pleadings be stricken if Defendants were to fail to retain counsel, 

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the court now recommends that Defendants’ Original Answer (Dkt. #7) be stricken from the 

record. 

Default Judgments

Rule 55 of the Federal Rules of Civil Procedure sets forth the conditions upon which default 

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

FED.R.CIV. P. 55. Securing a default judgment involves a three-step procedure: (1) the defendant’s 

default; (2) the entry of default; and (3) the entry of default judgment. New York Life Ins. Co. v. 

Brown, 84 F.3d 137, 141 (5th Cir. 1996). A “default” occurs when the defendant does not plead 

or otherwise respond to the complaint. Id. An “entry of default” is the notation the clerk makes 

after the default is established by affidavit. Id. “In determining whether to enter a default judgment 

against a defendant, Courts in the Fifth Circuit utilize a three-part analysis: 1) whether the entry of 

default judgment is procedurally warranted, 2) whether a sufficient basis in the pleadings based on 

the substantive merits for judgment exists, and 3) what form of relief if any, a plaintiff should 

receive.” Graham v. Coconut LLC, No. 4:16-CV-606, 2017 WL 2600318, at *1 (E.D. Tex. June 

15, 2017) (citing Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998)). 

Here, Plaintiff’s Motion for Default Judgment is premature. Pending adoption of this 

Report and Recommendation, Defendants still have an Answer on file. However, should the 

District Court adopt this Report and Recommendation that recommends striking Defendant’s 

Answer, Plaintiff’s Motion for Default judgment would still not be properly before the court. As a 

prerequisite to filing a Motion for Default Judgment, Plaintiff must follow the procedure outlined 

above. That is, request the clerk’s entry of default, obtain the clerk’s entry of default, and then file 

a motion for default judgment. As Plaintiff’s Motion for Default Judgment is procedurally 

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deficient, the court recommends denying the Motion (Dkt. #22) without prejudice to refiling the 

same. 

CONCLUSION AND RECOMMENDATION

For the foregoing reasons, the court recommends that Defendants’ Original Answer (Dkt. 

#7) be STRICKEN from the record and that Plaintiff’s Motion for Default Judgment (Dkt. #22) 

be DENIED without prejudice. 

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

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). 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 party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. See 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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