United States Court of Appeals

for the Fifth Circuit

No. 21-10294

Okoeguale Obinyan, 

Plaintiff—Appellant,

versus

Walgreens Specialty Pharmacy Holdings, L.L.C., 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-933

Before Barksdale, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

The linchpin in Okoeguale Obinyan’s Title VII action against 

Walgreens Specialty Pharmacy Holdings, L.L.C. (WSPH), is whether it 

became Obinyan’s employer as the result of a joint business venture 

(venture) between Prime Therapeutics, L.L.C. (Prime), and Walgreens Co. 

(Walgreens). Proceeding pro se, Obinyan challenges: an entry of default

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 31, 2022

Lyle W. Cayce

Clerk

Case: 21-10294 Document: 00516262848 Page: 1 Date Filed: 03/31/2022
No. 21-10294

2

being set aside; his motions to compel discovery being denied; and summary 

judgment’s being granted for WSPH on the basis that it did not employ him. 

AFFIRMED.

I.

Prime, a third-party pharmacy benefits manager, hired Obinyan in 

December 2010 to work as a customer-service representative in its Irving, 

Texas, facility, at which Obinyan worked until his termination in October 

2017. Prime and Walgreens entered the venture on 31 March 2017 “to 

combine . . . pharmacies and related businesses . . . each company owned”. 

As a result, WSPH was created as a holding company, owned jointly by Prime 

and Walgreens, with their remaining separate entities. 

WSPH became the owner of, inter alia, Prime’s Irving facility. 

Because WSPH had not yet implemented employment policies or protocols, 

it entered into an employee-lease agreement with Prime, which began that 

April. Prime leased employees at its Irving facility, including Obinyan, to 

WSPH, with those employees to remain employed by Prime until WSPH 

became their employer at the end of 2017. (Obinyan contends that, because 

of the venture, he became an employee of WSPH on 4 April 2017.) Until 

Obinyan’s termination that October, Prime: employed Obinyan in multiple 

positions; paid and supervised him; implemented employee-discipline 

procedures against him; and administered employee-benefit programs in 

which he participated. 

In June 2017, Prime reproached Obinyan for: failing to meet dailyproduction metrics; and taking time off work without authorization. He 

contended these actions constituted discrimination and filed: complaints

with Prime’s human-resources department; and a charge of discrimination 

based on retaliation with the EEOC, listing Prime as his employer. 

Case: 21-10294 Document: 00516262848 Page: 2 Date Filed: 03/31/2022
No. 21-10294

3

At the end of the summer, Obinyan was informed that his department 

was being relocated. Prime provided him with two options: secure another 

position with it; or remain employed, be terminated eventually, and receive 

severance pay if he signed, inter alia, an agreement releasing all claims against 

it. Obinyan neither secured another position nor signed the agreement. 

Prime terminated Obinyan that October. (Earlier that month, some 

pharmacies owned by WSPH began using the tradename “Alliance Rx 

Walgreens Prime” (Alliance).) Obinyan’s requested severance pay from 

Prime was denied because, as noted, he failed to sign a claims-release 

agreement. That November, he filed a second charge of discrimination with 

the EEOC against Prime for national-origin discrimination, contending 

Prime had discriminated against him as early as 2016. 

Having received a right-to-sue letter and proceeding pro se, Obinyan 

filed this action in 2018 against, inter alia, Prime, Alliance, and Walgreens, 

contending they violated Title VII of the Civil Rights Act of 1964 by:

discriminating against him on account of his race and national origin; and 

retaliating against him. Obinyan did not, however, include WSPH as a 

defendant. 

Default was entered against Alliance (entry) after it did not respond

to Obinyan’s complaint. On the same day that Obinyan moved for default 

judgment against Alliance, WSPH moved to set aside the entry, contending 

it was named incorrectly as Alliance in Obinyan’s complaint, and noting

Obinyan’s confusion likely resulted from some pharmacies owned by WSPH 

beginning to use the Alliance tradename in October 2017. A magistrate 

judge’s report (R & R) recommended, inter alia: WSPH did not willfully fail 

to respond; and the entry be set aside. The district court: adopted the R & R;

set aside the entry; and ordered WSPH to file a responsive pleading. 

Case: 21-10294 Document: 00516262848 Page: 3 Date Filed: 03/31/2022
No. 21-10294

4

WSPH’s motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6) (failure to state claim) was granted; but Obinyan was permitted to 

replead his claims against WSPH. In doing so, he contended WSPH violated 

Title VII through national-origin discrimination and retaliation. WSPH’s 

second similar motion to dismiss was denied.

In his two motions on 20 October and 2 November 2020 to compel 

discovery from Prime and Walgreens, Obinyan sought, inter alia, information 

pertaining to WSPH’s formation. Both motions were denied. (The motions 

were against Prime and Walgreens as nonparties. All defendants other than 

WSPH had been dismissed in 2019.) 

After WSPH moved for summary judgment in 2021, contending, inter 

alia, it never employed Obinyan, his response was instead an objection to 

WSPH’s first motion to dismiss, which the court construed as a summaryjudgment response. He also filed: a February 2021 motion to compel 

discovery from WSPH; and a “second response” to its summary-judgment 

motion. Thisresponse was not considered because it constituted an improper

surreply. 

In its 17 March 2021 opinion and order, the court, inter alia: denied 

as moot Obinyan’s motion to compel discovery; awarded summary judgment 

to WSPH on the basis it was not his employer; and dismissed this action with 

prejudice. 

II.

In challenging his action’s being dismissed, Obinyan presents three 

issues. (As noted, he proceeds pro se, as he did in district court. Accordingly, 

his briefs and filings “are to be liberally construed”. Coleman v. United 

States, 912 F.3d 824, 828 (5th Cir. 2019) (citation omitted).) Title VII 

prohibits, inter alia, “an employer” from: “discriminat[ing] against any 

individual . . . because of such individual’s . . . national origin”; and retaliating 

Case: 21-10294 Document: 00516262848 Page: 4 Date Filed: 03/31/2022
No. 21-10294

5

against an employee for engaging in a protected activity under the Act. 42 

U.S.C. §§ 2000e-2(a), 3(a). 

A.

The entry’s being set aside because WSPH was named incorrectly as 

Alliance in Obinyan’s complaint is reviewed for abuse of discretion. E.g.,

Koerner v. CMR Constr. & Roofing, L.L.C., 910 F.3d 221, 225 (5th Cir. 2018). 

Factual findings underlying the decision are reviewed for clear error. Lacy v. 

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

Rule 55(c) states a “court may set aside an entry of default for good 

cause”. Three factors are generally applied: “whether the default was 

willful”; “whether setting it aside would prejudice the adversary”; and 

“whether a meritorious defense is presented”. Lacy, 227 F.3d at 292 

(citation omitted). Obinyan’s opening brief, liberally construed, claims error 

for only the second and third factors. 

1.

Obinyan’s prejudice challenge is waived for failure to brief. (As is true 

for all parties, pro se appellants must brief their challenges to preserve them. 

E.g., Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).) Obinyan

reiterates his prejudice challenge without explaining what prejudice, if any,

resulted, instead making conclusory statements about: the court’s failure to 

explain how it determined WSPH was named incorrectly as Alliance; and the 

evidence did not support setting aside the entry. 

2.

Presenting a meritorious defense is a low bar: “the underlying 

concern is whether there is some possibility that the outcome of the suit after 

a full trial will be contrary to the result achieved by the default”. In re OCA, 

Inc., 551 F.3d 359, 373 (5th Cir. 2008) (emphasis added) (citation and 

Case: 21-10294 Document: 00516262848 Page: 5 Date Filed: 03/31/2022
No. 21-10294

6

alterations omitted). WSPH presented sufficient allegations to support 

setting aside the entry, including a declaration explaining WSPH never 

employed Obinyan. Moreover, the adopted R & R addresses adequately why 

setting aside the entry was proper. 

B.

Obinyan filed three motions to compel discovery: against Prime in

October 2020; Walgreens that November; and WSPH in February 2021. 

Denial of a motion to compel discovery is reviewed for abuse of discretion. 

E.g., Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 892 F.2d 1238, 1270 & 

n.114 (5th Cir. 1990). 

Although Obinyan asserts the court failed to rule on his first two 

motions, they were denied on 14 January 2021. He also makes conclusory 

statements that: the denials violated his due-process rights; and the court 

generally erred. These challenges are waived for failure to brief, as Obinyan 

provides no explanation to substantiate his assertions. 

C.

The summary judgment granted WSPH is reviewed de novo, under the 

same standards used by the district court. Hagen v. Aetna Ins. Co., 808 F.3d 

1022, 1026 (5th Cir. 2015). Summary-judgment evidence is viewed in the 

light most favorable to the non-movant. E.g., Am. Family Life Assur. Co. of 

Columbus v. Biles, 714 F.3d 887, 895 (5th Cir. 2013) (per curiam).

Summary judgment is proper “if . . . movant shows that there is no 

genuine dispute as to any material fact and . . . is entitled to judgment as a 

matter of law”. Fed. R. Civ. P. 56(a). A “dispute about a material fact is 

‘genuine’ . . . if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party”. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986). If movant “makes a properly supported motion for 

Case: 21-10294 Document: 00516262848 Page: 6 Date Filed: 03/31/2022
No. 21-10294

7

summary judgment, the burden shifts to . . . nonmovant to show . . . the 

motion should not be granted”. Edwards v. Cont’l Cas. Co., 841 F.3d 360, 

363 (5th Cir. 2016) (citation and alteration omitted).

As noted infra, generally only employers may be liable for conduct in 

violation of Title VII. E.g., Oden v. Oktibbeha Cnty., 246 F.3d 458, 462 (5th 

Cir. 2001). Accordingly, for all claims against it, WSPH contended it never 

employed Obinyan as a result of the venture because, inter alia: he was not 

required to reapply for his position; he never received new employee policies 

or benefits-program information from WSPH; Prime continued to pay and 

supervise him; and he listed Prime as his employer on his tax returns through 

2017. 

Obinyan’s summary-judgment evidence was, inter alia: an email 

referring to him as an Alliance employee; an email directing him to send files 

to WSPH; a screenshot of a joint-employment-application database used by 

WSPH and Prime, showing he applied to positions at WSPH; and emails 

showing he applied for a WSPH position and requested an interview. 

The court considered whether WSPH and Prime constituted a single,

or a joint, employer, and granted summary judgment for WSPH on both 

theories. Obinyan claims only that they constitute a joint employer. 

The latter part of Obinyan’s employment by Prime coincided with the 

venture’s initial stages, evidenced by Obinyan’s applying for WSPH 

positions. Essentially for the reasons stated by the district court: he fails to 

show a genuine dispute of material fact exists for whether WSPH and Prime 

constituted a joint employer; and, WSPH is entitled to judgment as a matter 

of law. Fed. R. Civ. P. 56(a). Prime, inter alia, hired Obinyan; paid his

wages; supervised him; provided employee benefits in which he participated; 

implemented employee-disciplinary procedures against him; and terminated 

him when he failed to seek another position with Prime. 

Case: 21-10294 Document: 00516262848 Page: 7 Date Filed: 03/31/2022
No. 21-10294

8

III.

For the foregoing reasons, the judgment is AFFIRMED.

Case: 21-10294 Document: 00516262848 Page: 8 Date Filed: 03/31/2022