IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-11035

EDDIE WOOTEN, 

 Plaintiff–Appellee

v.

MCDONALD TRANSIT ASSOCIATES, INCORPORATED, 

 Defendant–Appellant

Appeal from the United States District Court

for the Eastern District of Texas

Before SMITH, WIENER, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Plaintiff–Appellee Eddie Wooten filed suit against Defendant–Appellant 

McDonald Transit Associates, Inc. under the Age Discrimination in 

Employment Act (ADEA), 29 U.S.C. §§ 621–634, alleging discrimination and 

retaliation. McDonald Transit never answered or defended the suit. The clerk 

entered default against McDonald Transit, and, after holding a hearing on 

damages in which Wooten provided live testimony, the district court entered 

default judgment for Wooten. McDonald Transit filed a motion to set aside the 

default judgment, which the district court denied. Wooten’s complaint

contained very few factual allegations, but his testimony at the damages 

hearing provided evidence on the elements of his claim that were absent from 

his pleadings. Accordingly, we confront the question we left open in 

United States Court of Appeals

Fifth Circuit

FILED

January 2, 2015

Lyle W. Cayce

Clerk

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Nishimatsu Construction Co., Ltd. v. Houston National Bank, 515 F.2d 1200 

(5th Cir. 1976), and conclude that evidence adduced at a default-judgment 

“prove-up” hearing cannot cure a deficient complaint. We therefore vacate the 

district court’s entry of default judgment and remand the case to the district 

court.

I. BACKGROUND

On June 22, 2012, Wooten sued McDonald Transit in federal court, 

alleging discrimination on the basis of his age and retaliation after he made a 

claim of age discrimination. In his complaint, Wooten alleged that he was a 

former employee of McDonald Transit, where he had worked from 1999 until 

May 1, 2011. At the time he was fired, he worked as a Class B Mechanic. He 

further alleged:

In October 2010, [Wooten] made a claim to the Equal Employment 

Opportunity Commission for age discrimination. After the claim 

was made and continuing until [his] employment ended, 

[McDonald Transit], in violation of the ADEA, discriminated and 

retaliated against [Wooten], and created a hostile work 

environment, until such time that Plaintiff was constructively 

discharged on or about May 1, 2011.

Wooten’s complaint contained no additional factual allegations.

The district clerk issued a summons the same day that Wooten filed his 

complaint. On July 18, 2012, Wooten returned the summons with an affidavit 

of service indicating that service had been executed on July 5 on McDonald 

Transit’s president and registered agent, Robert T. Babbitt, by certified mail, 

return receipt requested. But the return receipt indicated that process had in 

fact been served on Brenda Roden, another McDonald Transit officer. After 

McDonald Transit failed to appear, plead, or otherwise defend Wooten’s suit, 

the district clerk entered default against McDonald Transit on October 30, 

2012, and Wooten moved for a default judgment. 

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The district court held a hearing on the motion in December 2012, but 

took issue with the fact that Roden, not Babbitt, had been served. The court 

adjourned the hearing so that Wooten could attempt proper service on Babbitt

again. The district clerk issued new summons, and Wooten returned with a 

new affidavit of service indicating service had been executed by personal 

delivery on Babbitt on January 17, 2013. Again McDonald Transit failed to 

appear, answer, or defend; again the district clerk entered default; and again 

Wooten moved for a default judgment. 

The district court held a hearing on whether to enter default judgment 

on June 7. At that hearing, which the court expressly designated “a hearing 

to prove up damages for a default judgment,” Wooten provided testimony that

elaborated on his factual allegations. He testified that he was born in January 

1956, making him fifty-four years old at the time he made his claim to the 

EEOC. He explained that during his tenure at McDonald Transit, he had been 

promoted from the position of Class B Mechanic to the position of Shop 

Foreman. He also described his retaliation claim in greater detail: he stated 

that he was demoted from Shop Foreman, lowering his pay by $2 an hour. He 

was given menial work, and his hours were changed. He was denied 

opportunities for additional job-related certification. He stated that he “never 

got [written] up, [and was] never reprimanded.” The district court entered a 

default judgment that same day.

McDonald Transit filed a motion to set aside the default judgment on 

June 18. In an affidavit accompanying the motion, Babbitt averred that he 

was never served with process, that he had not learned of the suit naming 

McDonald Transit as a defendant until June 11, and that he retained counsel 

to challenge the default judgment soon afterward. 

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McDonald Transit challenged the suit on numerous grounds under 

Federal Rules of Civil Procedure 55(c) and 60(b). In particular, McDonald 

Transit invoked Rule 60(b)(1) (mistake, inadvertence, surprise, or excusable 

neglect); (b)(3) (fraud, misrepresentation, or misconduct by an opposing party); 

(b)(4) (the judgment is void); and (b)(6) (any other reason that justifies relief). 

In asking the court to set aside the default judgment under Rule 60(b)(1), 

McDonald Transit claimed it had a few defenses to Wooten’s suit—namely, 

McDonald Transit was not Wooten’s employer; Wooten had failed to obtain a 

right-to-sue letter before suing McDonald Transit; and Wooten had failed to 

file suit within the required time from the issuance of a right to sue letter. 

McDonald Transit also asserted that it was not properly served and therefore 

had not willfully disregarded its duty to respond. In response, Wooten argued 

that McDonald Transit had failed to offer any explanation for its default, failed 

to produce sufficient evidence of a meritorious defense, and relied on Babbitt’s 

uncorroborated and self-serving statements.

The district court denied McDonald Transit’s motion to set aside the 

default judgment. Based on evidence of service of process to Babbitt and Roden 

(who the court had learned was a vice president of McDonald Transit), the 

court inferred that McDonald Transit had knowingly and intentionally failed 

to answer or otherwise defend against the complaint. The court further 

rejected McDonald Transit’s claim to raise meritorious defenses on the grounds 

that the “record is far from conclusive” and these defenses were effectively 

waived by failing to answer the complaint.

McDonald Transit timely appealed both the default judgment and the 

order denying its motion to set aside the default judgment.

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II. JURISDICTION AND STANDARD OF REVIEW

Wooten sued McDonald Transit for violations of federal law under the 

ADEA; accordingly, the district court had subject-matter jurisdiction under 28 

U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. 

A district court must exercise its discretion in determining whether it 

should enter a default judgment under Rule 55(b)(2). Mason v. Lister, 562 F.2d 

343, 345 (5th Cir. 1977). We review the entry of a default judgment for abuse 

of discretion. U.S. for the Use of M–CO Constr., Inc. v. Shipco Gen., Inc., 814 

F.2d 1011, 1013 (5th Cir. 1987). Rule 55(c) provides that a district court “may 

set aside an entry of default for good cause” and “may set aside a default 

judgment under Rule 60(b).” We correspondingly review the district court’s

refusal to set aside a default judgment for abuse of discretion. Lacy v. Sitel 

Corp., 227 F.3d 290, 291–92 (5th Cir. 2000); Shipco, 814 F.2d at 1013. “Any 

factual determinations underlying that decision are reviewed for clear error.” 

Lacy, 227 F.3d at 292.

Yet, we undertake this review with a grain of salt. “‘Because of the 

seriousness of a default judgment, and although the standard of review is 

abuse of discretion, even a slight abuse of discretion may justify reversal.’” In 

re Chinese–Manufactured Drywall Prods. Liab. Litig., 742 F.3d 576, 594 (5th 

Cir. 2014) (quoting Lacy, 227 F.3d at 292). Review of a default judgment puts 

competing policy interests at play. On one hand, “[w]e have adopted a policy 

in favor of resolving cases on their merits and against the use of default 

judgments.” Id. On the other, this policy is “counterbalanced by considerations 

of social goals, justice and expediency, a weighing process [that] lies largely 

within the domain of the trial judge’s discretion.” Id. (alteration in original) 

(quoting Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th 

Cir. 1999)) (internal quotation marks omitted).

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III. DISCUSSION

On appeal, McDonald Transit raises two principal issues: (1) whether 

the district court erred in entering a default judgment and (2) whether the 

district court erred in denying McDonald Transit’s motion to set aside the 

judgment.1 Because we only need to answer the first question, we do not reach 

the second.

“A default judgment is unassailable on the merits but only so far as it is 

supported by well-pleaded allegations, assumed to be true.” Nishimatsu Constr. 

Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (citing Thomson v. 

Wooster, 114 U.S. 104, 113 (1885)). Put another way, “a defendant’s default does 

not in itself warrant the court in entering a default judgment. There must be a 

sufficient basis in the pleadings for the judgment entered.” Id. In sum, “[t]he 

defendant is not held to admit facts that are not well-pleaded or to admit 

conclusions of law. . . . On appeal, the defendant, although he may not challenge 

the sufficiency of the evidence, is entitled to contest the sufficiency of the 

complaint and its allegations to support the judgment.” Id. In addition, a court 

“may conduct hearings . . . when, to enter or effectuate judgment,” it needs to, 

inter alia, “establish the truth of any allegation by evidence . . . or . . . investigate 

any other matter.” Fed. R. Civ. P. 55(b)(2)(C); see also 10A Charles A. Wright et 

al., Federal Practice & Procedure § 2688 (3d ed. 1998) (“[W]hen it seems 

advantageous, a court may conduct a hearing to determine whether to enter a 

judgment by default. . . . [T]he court, in its discretion, may require some proof 

of the facts that must be established in order to determine liability.”).

1 McDonald Transit purports to raise five issues in its Statement of Issues. Three of 

those issues—having to do with the standard for meritorious defenses, the consideration of 

other factors, and other grounds for relief under Rule 60(b)(6)—all relate to the principal 

issue of whether the district court erred in declining to set aside the default judgment. 

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Neither party disputes that entry of default was appropriate. The 

parties disagree about (1) the ADEA standard that governs Wooten’s claim; (2) 

whether the district court can consider evidence presented at the hearing in 

addition to the allegations in supporting default judgment; and (3) the 

sufficiency of Wooten’s allegations.

A. ADEA Framework

McDonald Transit asserts that Wooten’s complaint insufficiently alleged 

the essential elements of his prima facie retaliation claim under the ADEA—

in particular, membership in a protected class and qualification. Wooten

contests both elements.

The ADEA makes it unlawful “for an employer to discriminate against 

any of his employees . . . because such individual . . . has opposed any practice 

made unlawful by this section, or because such individual . . . has made a 

charge, testified, assisted, or participated in any manner in an investigation, 

proceeding, or litigation under this Act.” 29 U.S.C. § 623(d). The framework 

for establishing a prima facie retaliation claim under the ADEA is 

straightforward. A plaintiff “must show (1) that he engaged in a protected 

activity, (2) that there was an adverse employment action, and (3) that a causal 

link existed between the protected activity and the adverse employment 

action.” Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 259 (5th Cir. 2001). 

Holtzclaw unequivocally added a fourth element to the claim—a plaintiff who 

sought re-employment under the ADEA must prove as a part of his prima facie 

case that he was qualified for his position. Id.2 

2 The Holtzclaw court reasoned that because qualification for the job is a requirement 

to make a prima facie discrimination claim under the ADEA, and because “[r]etaliation 

claims are nothing more than a protection against discrimination,” “it would be illogical not 

to require one here.” 255 F.3d at 259. Burlington Northern & Santa Fe Railway Co. v. White, 

548 U.S. 53 (2006), casts doubt on this reasoning. In that Title VII retaliation case, the Court 

examined the relationship of that statute’s discrimination and retaliation provisions. See 

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Contrary to McDonald Transit’s position, neither § 623(d) nor Holtzclaw 

requires that Wooten prove he was a member of a class protected by the ADEA 

discrimination provisions. Compare 29 U.S.C. § 631 (defining class of 

individuals covered by age-discrimination provisions), with id. § 623(d) 

(permitting retaliation provision to apply to “any” employee). Therefore, the 

only elements that Wooten must sufficiently allege are (1) protected activity, (2) 

adverse employment action, (3) causal link, and (4) qualification.

B. Assessing the Entry of Default Judgment Based on Allegations

and Testimony

We begin by determining whether Wooten’s complaint, either standing 

alone or considered together with his testimony at the hearing, adequately 

Burlington, 548 U.S. at 61–67. The Burlington Court found that the provisions featured 

different language and responded to different purposes—namely, “[t]he substantive 

[discrimination] provision seeks to prevent injury to individuals based on who they are, i.e.,

their status[, whereas t]he antiretaliation provision seeks to prevent harm to individuals 

based on what they do, i.e., their conduct.” Id. at 63. It therefore concluded that the 

discrimination and retaliation provisions were not “coterminous” and “reject[ed] the 

standards applied in the Courts of Appeals that have treated the antiretaliation provision as 

forbidding the same conduct prohibited by the antidiscrimination provision.” Id. at 67. 

Nevertheless, because Burlington addressed Title VII rather than the ADEA, it did not 

“unequivocally overrule” Holtzclaw, and we remain bound to apply that case. See Technical 

Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012) 

(internal quotation marks omitted); cf. United States v. Short, 181 F.3d 620, 624 (5th Cir. 

1999) (“[T]his panel is bound by the precedent of previous panels absent an intervening 

Supreme Court case explicitly or implicitly overruling that prior precedent . . . .” (emphasis 

added)).

We observe that our Court has not consistently required plaintiffs to prove 

qualification under Holtzclaw after Burlington. See, e.g., Munoz v. Seton Healthcare, Inc., 

557 F. App’x 314, 321 (5th Cir. 2014) (per curiam) (citing Holtzclaw for the elements of a 

prima facie case of retaliation under the ADEA but omitting the qualification element); Pree 

v. Farmers Ins. Exch., 552 F. App’x 385, 388 (5th Cir. 2014) (per curiam) (same); Miller v. 

Metro Ford Auto. Sales, Inc., 519 F. App’x 850, 851–52 (5th Cir. 2013) (per curiam) (same). 

Moreover, even before Burlington, a panel of our Court “decline[d] to extend the Holtzclaw 

requirements” to a case involving wrongful discharge, though that case was before us on 

appeal from judgment as a matter of law and there “ha[d] been no determination that [the 

plaintiff] . . . was not qualified.” EEOC v. Dunbar Diagnostic Servs. Inc., 92 F. App’x 83, 84–

85 (5th Cir. 2004) (per curiam). We need not decide whether Holtzclaw remains viable, 

however, because—as explained below—we hold that Wooten’s complaint is not “wellpleaded” even if he were not required to allege qualification as part of his prima facie case. 

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states a claim upon which default judgment could properly be entered. We 

conclude that Wooten’s complaint is impermissibly bare, but if viewed in 

combination with his live testimony, it provides a sufficient basis to support

the default judgment against McDonald Transit. Correspondingly, we must 

address the question on which we reserved judgment in Nishimatsu: May 

fatally defective pleadings be corrected by proof taken at a default-judgment 

hearing? 515 F.2d at 1206 n.5. We answer this matter of first impression in 

the negative and therefore conclude that the district court erred in entering 

default judgment on Wooten’s deficient complaint.

1. Wooten’s Prima Facie Case

Despite announcing that a default judgment must be “supported by wellpleaded allegations” and must have “a sufficient basis in the pleadings,” the

Nishimatsu court did not elaborate on these requirements. See 515 F.2d at 

1206. Nothing in the record or the parties’ briefs discusses how to determine 

what is “well-pleaded” or “sufficient,” and we have found no guidance in our 

own cases. The Second Circuit has said that “so long as the facts as painted by 

the complaint ‘might [. . .] have been the case’ they may not now be successfully 

controverted [following entry of default].” Trans World Airlines, Inc. v. 

Hughes, 449 F.2d 51, 64 (2d Cir. 1971) (first alteration in original), rev’d on 

other grounds sub nom. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 

363 (1973). In comparison, the Ninth Circuit has held that factual allegations 

are not well-pleaded when they “parrot the language” of the statute creating 

liability. DirecTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007).

Moreover, whether a factual allegation is well-pleaded arguably follows 

the familiar analysis used to evaluate motions to dismiss under Rule 12(b)(6). 

In that context, the Supreme Court has reiterated that “[t]hreadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements,” are 

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not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007)). See generally 2 James Wm. Moore et al., 

Moore’s Federal Practice § 8.04[1][e]–[f] (3d ed. 2014).

Wooten’s complaint contains the following factual allegations. 

(1) Wooten is a former employee of McDonald Transit. (2) Wooten was 

employed by McDonald Transit from 1999 until May 1, 2011. At the time he 

was fired, Wooten was a Class B mechanic earning $19.50 per hour, plus 

benefits. (3) In October 2010, Wooten filed an age-discrimination claim with 

the EEOC, after which McDonald Transit “discriminated and retaliated 

against [Wooten], and created a hostile work environment, until such time that 

[Wooten] was constructively discharged on or about May 1, 2011.” 

(4) McDonald Transit’s unlawful conduct has caused Wooten harm, including 

damages in the form of lost wages and benefits, mental anguish, and noneconomic damages. 

We hold that Wooten’s complaint, standing alone, fails to meet either the 

Rule 12(b)(6) “plausibility” standard or the broadly similar standards 

announced by the Second and Ninth Circuits. His few factual allegations are 

inextricably bound up with legal conclusions (e.g., “discriminated and 

retaliated” and “created a hostile work environment” leading to “constructive[] 

discharge”). Read in its entirety, the complaint merely “parrot[s] the language” 

of the ADEA, Hoa Huynh, 503 F.3d at 854, and comprises a “[t]hreadbare 

recital[] of the elements of a cause of action, supported by mere conclusory 

statements,” Iqbal, 556 U.S. at 678. Indeed, given the lack of detail in the 

complaint, we cannot even speculate as to whether the facts “might [. . .] have 

been the case,” Hughes, 449 F.2d at 64 (alteration in original). Furthermore, 

the complaint makes—at best—only an indirect, inferential allegation of a 

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causal link and fails to address altogether the qualification element required 

by Holtzclaw. 

In view of the above, we conclude that Wooten’s complaint is not “wellpleaded” for default-judgment purposes.3 However, we also conclude that 

Wooten’s live testimony provides sufficient evidence of each of the elements of 

his ADEA cause of action to support the entry of default. We discuss each 

pertinent element in turn.4

a. Adverse Employment Action

In his testimony, Wooten described a variety of concrete actions (changes 

in hours, reduced responsibilities, demotion, preclusion from job-related 

certification) that together might amount to an adverse employment action. To 

establish that he suffered an adverse employment action, Wooten must show 

that “a reasonable employee would have found the challenged action materially 

adverse, which in this context means it well might have dissuaded a reasonable 

worker from making or supporting a charge of discrimination.” Burlington N. 

3 The dissent agrees with this assessment but predicts that district courts now will 

“almost certainly refuse” to grant default judgments based on petitions “that are anything 

short of absolute perfection.” Post at 26. It is, we hope, clear from the preceding discussion 

that the pleading standard for a default judgment is far less onerous than the dissent

suggests. And we trust our colleagues in the district courts to distinguish the extraordinarily 

deficient pleadings, like Wooten’s complaint, from the sorts of “close call[s]” the dissent

describes in its hypothetical. Post at 28. To the extent that the dissent anticipates strategic 

behavior by courts and litigants, post at 28–29, its points are well-taken. As explained in 

Part III(B)(2), infra, our default-judgment jurisprudence is animated by the interplay 

between competing interests, including fairness, expediency, justice, and finality. Our 

approach differs from the dissent’s in the balance it strikes between these interests. We 

believe, however, that our position is more consistent with the text and the purposes of the 

Federal Rules of Civil Procedure, as well as with our default-judgment precedents and those 

of our sister circuits. See infra Part III(B)(2).

4 We omit discussion of whether Wooten engaged in a protected activity because 

McDonald Transit does not raise that issue on appeal and therefore has abandoned the claim. 

See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Nevertheless, we conclude that 

Wooten’s complaint and testimony adequately describe the discrimination charge he filed with 

the EEOC—a protected activity under the ADEA. See 29 U.S.C. § 623(d).

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& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and internal 

quotation marks omitted). Wooten’s undisputed testimony could support a 

finding that these actions were materially adverse.

b. Causal Link

McDonald Transit contends that nothing in the complaint nor in 

Wooten’s testimony shows a causal link between the October 2010 claim and 

the subsequent alleged adverse employment action. Wooten argues that 

merely showing a tight sequence of events—as his hearing testimony does—

can be enough to make a prima facie showing of a causal link. 

In Clark County School District v. Breeden, 532 U.S. 268 (2001), the 

Supreme Court made clear that a narrow band of retaliation claims can 

establish causation by the “very close” temporal proximity alone. Id. at 273; 

accord Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 

2007). Breeden cites cases in which courts found a three- or four-month lapse 

in time insufficiently close to establish a causal link where the proof was based 

on temporal proximity alone. 532 U.S. at 273–74. Here, though, the delay 

between filing and adverse treatment is far shorter. Wooten claims that the 

adverse treatment he received lasted for about six months. Since there was 

only a seven-and-a-half-month window between the date Wooten filed his 

EEOC claim and the date he resigned, the adverse treatment must have begun 

within two months of his filing. Therefore, Breeden suggests that Wooten’s 

testimony establishes a sufficient causal connection to support the default 

judgment.

c. Qualification

Finally, Wooten’s testimony evinces that he was qualified for his job at 

the time of the adverse employment action. Although Holtzclaw made 

qualification for the job an additional requirement, it did not explain how to 

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evaluate that requirement. See 255 F.3d at 260. Nevertheless, a review of our 

ADEA jurisprudence indicates that “qualified” has a broadly colloquial 

meaning in this context; it refers to objective job qualifications (e.g., training, 

experience, and physical capacity), not “essential functions” or any other term 

of art associated with the term’s counterpart in the Americans with Disabilities 

Act.

Bienkowski v. American Airlines, Inc., 851 F.2d 1503 (5th Cir. 1988), 

appears to be our sole case expressly defining “qualification” for ADEA 

purposes.5 In Bienkowski, we rejected the proposition that an employee is not 

“qualified” under the ADEA if his supervisors are dissatisfied with his work 

(i.e., if the employee does not “me[e]t his employer’s legitimate expectations”). 

851 F.2d at 1505. Instead, we concluded that “a plaintiff challenging his 

termination or demotion [under the ADEA] can ordinarily establish a prima 

facie case of age discrimination by showing that he continued to possess the 

necessary qualifications for his job at the time of the adverse action.” Id. at 

1506. We then explained: “By this we mean that plaintiff had not suffered 

physical disability or loss of a necessary professional license or some other 

occurrence that rendered him unfit for the position for which he was hired.”

Id. at 1506 n.3.

The cases in this circuit following Bienkowski have accordingly focused on 

objective job qualifications when assessing the “qualified” element of ADEA 

discrimination and retaliation claims. See, e.g., Berquist v. Wash. Mut. Bank, 

500 F.3d 344, 349-50 (5th Cir. 2007) (concluding that the plaintiff had made out 

5 Although Bienkowski predates Holtzclaw and centers on a claim for discrimination 

rather than retaliation, its analysis of qualification is specific to the ADEA context. See 

Bienkowski, 851 F.2d at 1505–06. Further, in its explanation of the qualification ruling, the 

Holtzclaw court cited an ADEA discrimination case, Price v. Marathon Cheese Corp., 119 F.3d 

330 (5th Cir. 1997), suggesting that the term has the same meaning in both discrimination 

and retaliation claims. See Holtzclaw, 255 F.3d at 260 & n.2.

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a prima facie case of ADEA discrimination by showing that he “possessed the 

same job qualifications when [his employer] terminated him as when [it] 

assigned him to [his last] position,” as evidenced by the employee meeting “the 

objective criteria listed in a job posting” and holding a similar job title for two 

years); Fullen v. Galveston Indep. Sch. Dist., 564 F. Supp. 2d 719, 730–31, 732–

34 (S.D. Tex. 2008) (reasoning that the plaintiff could not establish a prima facie 

case of ADEA retaliation because “he was not objectively qualified to continue 

serving” in his position due to his failure to complete required training); cf. 

Tratree v. BP N. Am. Pipelines, Inc., 277 F. App’x 390, 395 (5th Cir. 2008) (per 

curiam) (determining that the plaintiff had failed to state a claim for failure to 

promote under the ADEA because “by his own admissions he had not completed 

the on-the-job training necessary to become eligible” for the position he sought, 

thereby precluding a showing of qualification).

Likewise, this Court has found a relatively spare ADEA complaint 

sufficient to survive a Rule 12(b)(6) motion to dismiss when it contains factual 

allegations evidencing the plaintiff’s experience, promotions, and 

commendations. See Leal v. McHugh, 731 F.3d 405, 413 (5th Cir. 2013). In 

Leal, we held that the federal-employee plaintiffs’ ADEA-discrimination claims

could withstand a motion to dismiss despite their barebones complaint. Id.

The complaint never explicitly asserted that the plaintiffs were “qualified” for 

the positions they sought. First Amended Complaint at 1–2, Leal v. McHugh, 

No. 2:11-cv-00249 (S.D. Tex. Dec. 20, 2011), ECF No. 11. But it indicated that 

one plaintiff had over twenty years of experience in similar positions and was 

recognized as “the most productive employee” in his division, while the other 

plaintiff had earned a promotion and had received top ratings on nearly every

performance evaluation for nineteen years. Leal, 731 F.3d at 408. 

Acknowledging that the complaint contained “few facts,” we nonetheless held 

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that the plaintiffs successfully alleged qualification and that “the[ir] 

admittedly bare allegations sufficiently state[d] a plausible claim for age 

discrimination to survive a motion to dismiss.” Id. at 413.

Here, Wooten testified about his twelve years of experience at McDonald 

Transit, his promotion to the position of Shop Foreman, and his positive—or at 

least neutral—work evaluations while in that position. There is no evidence 

that he “suffered physical disability or loss of a necessary professional license 

or some other occurrence that rendered him unfit for the position for which he 

was hired,” Bienkowski, 851 F.2d at 1506 n.3. To the contrary, his tenure, 

promotion, and clean performance record support the inference that he had the 

training and physical capacity required for the position he held. See Leal, 731 

F.3d at 413. As a result, Wooten’s testimony adequately establishes his 

qualification within the meaning of the ADEA.

Having determined that Wooten’s testimony at the default-judgment 

prove-up hearing—and not his complaint, standing alone—presents a prima 

facie case of retaliation under the ADEA, we are now squarely presented with 

the question of whether such testimony can cure fatally deficient pleadings for 

the purpose of entering a default judgment.

2. The Effect of Hearing Testimony on a Deficient Complaint

Since reserving judgment in Nishimatsu on the “possibility that 

otherwise fatal defects in the pleadings might be corrected by proof taken by 

the court at a [default-judgment prove-up] hearing,” 515 F.2d at 1206 n.5, this 

Court has not subsequently confronted this issue. Upon consideration of the 

text of the Federal Rules, our precedents and those of our sister circuits, and 

the policies underlying our default-judgment jurisprudence, we hold that a 

defective complaint cannot be redeemed by evidence presented at a prove-up

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hearing and therefore cannot support a default judgment absent amendment

of the pleadings.

We begin with the text of the rule governing default-judgment hearings—

Federal Rule of Civil Procedure 55. Rule 55(b)(2) authorizes a court considering 

an application for default judgment to “conduct hearings . . . when, to enter or 

effectuate judgment,” it needs to, inter alia, “establish the truth of any allegation 

by evidence . . . or . . . investigate any other matter.” Despite this expansive 

language, neither this circuit nor any other has squarely held that such a 

hearing would be appropriate to adduce facts necessary to state a claim that 

were absent from the pleading on which judgment was sought. Indeed, one 

would expect that if the text of the rule could be so construed, one of the courts 

of appeals would have endorsed this construction—and our Court in Nishimatsu 

would have had little reason to expressly avoid the question.6

As a matter of semantics, moreover, the text of the hearing provision 

presupposes valid allegations in the complaint. After all, to “establish the 

truth of any allegation,” there must be an existing allegation to assess. And a 

court’s authority to “investigate any other matter” in a default-judgment 

hearing is circumscribed by the stated purpose of the hearing—“to enter or 

effectuate judgment.” As there can be no judgment absent competent 

pleadings, Nishimatsu, 515 F.2d at 1206, it strains the text of the rule to 

suppose that this investigatory power encompasses the adduction of facts 

necessary to render the pleadings competent in the first place.7

6 The Advisory Committee Notes for the 1987, 2007, and 2009 amendments to Rule 55 

indicate that the rule has not undergone any substantive changes that bear on our 

observation. See Fed. R. Civ. P. 55 advisory committee’s notes.

7 As noted above, Wright and Miller observe that “the court, in its discretion, may 

require some proof of the facts that must be established in order to determine liability.” 10A 

Wright et al., supra, § 2688. We do not read Wright and Miller to suggest that such a request 

for proof of facts on liability would authorize the entry of default on facially deficient pleadings. 

Not only do they emphasize elsewhere the importance of well-pleaded facts or allegations to 

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We next observe that while none of our sister circuits have addressed the 

precise issue before us, our precedents agree on the basic proposition that a 

default judgment must be founded on adequate pleadings. For example, in a 

case presenting facts broadly similar to those we confront today, the Ninth 

Circuit held that evidence presented at a default-judgment prove-up hearing

could not cure a deficient complaint, at least where the defaulting party “had 

no opportunity to conduct discovery, and the court . . . indicated that [the 

hearing] was limited to the issue of damages.” Alan Neuman Prods., Inc. v. 

Albright, 862 F.2d 1388, 1393 (9th Cir. 1988). This case provides limited 

guidance, as the opinion was conditioned in part on the RICO context in which 

it arose.8 Nevertheless, to the extent that the Ninth Circuit’s ruling rests on 

the fundamental premise that the pleadings underlying a default judgment 

must state a cause of action, it finds ample support in the courts of appeal. See

City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 n.23 (2d Cir. 

2011) (“Most of our sister circuits appear to have held expressly that a district 

the entry of default, id., but a contrary reading would conflict with the text of Rule 55 for the 

reasons just explained. Moreover, none of the cases they cite in support of this proposition 

present the unique facts we confront today—a complaint that fails to state a claim but is 

supplemented by testimony at a default-judgment prove-up hearing. See id. n.8.

The dissent posits that because “all well-pleaded factual allegations must be taken as 

true” upon the defendant’s default, the word “allegation” in Rule 55(b)(2)(C) must “refer[] to 

something broader than ‘well-pleaded factual allegation.’” Post at 26 n.3. From this premise, 

the dissent concludes that “a Rule 55(b)(2) hearing may be conducted to establish the truth of 

factually deficient allegations.” Id. However, this reading elides the distinction between 

evidence that “establishes the truth of an[] allegation,” Fed. R. Civ. P. 55(b)(2)(C), and evidence 

that makes out a competent allegation in the first place. See infra p. 22.

8 See Alan Neuman Prods., 862 F.2d at 1392 (“The allegations of predicate acts in the 

complaint concerning those elements of RICO are entirely general . . . . This is a fatal defect 

under [Rule] 9(b), which requires that circumstances constituting fraud be stated with 

particularity.”); id. at 1393 (“We believe that pleading requirements should be enforced 

strictly when default judgments are sought under RICO. Not only is the monetary penalty 

for failure to answer greatly enhanced by the provisions for treble damages, but a defendant’s 

reputation may be stigmatized.” (citation omitted)).

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court may not enter a default judgment unless the plaintiff’s complaint states 

a valid facial claim for relief.”).9

Finally, we note that the rule we adopt today serves the policies 

animating our default-judgment jurisprudence and avoids prudential obstacles

inherent in the contrary rule Wooten’s position assumes. As our cases make 

plain, default judgments raise fundamental concerns of fairness—both to the 

plaintiff, who is entitled to judgment when the defendant fails to heed the 

commands of the judicial system, and to the defendant, who is entitled not to be 

held liable on claims that are procedurally or substantively infirm. Indeed, it is 

this delicate balance that informs our general policy disfavoring default 

judgments. See, e.g., Harper Macleod Solicitors v. Keaty & Keaty, 260 F.3d 389, 

393 (5th Cir. 2001) (“Federal courts generally disfavor default judgments, 

preferring to resolve disputes according to their merits.” (citing, inter alia,

Lindsey v. Prive Corp., 161 F.3d 886, 892 (5th Cir. 1998)); Sun Bank of Ocala v. 

Pelican Homestead & Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989) (per curiam) 

9 In support, the Second Circuit cites Conetta v. National Hair Care Centers, Inc., 236 

F.3d 67, 75–76 (1st Cir. 2001); Ryan v. Homecomings Financial Network, 253 F.3d 778, 780 

(4th Cir. 2001); Nishimatsu, 515 F.2d at 1206; General Conference Corp. of Seventh–Day 

Adventists v. McGill, 617 F.3d 402, 407 (6th Cir. 2010); Black v. Lane, 22 F.3d 1395, 1399 

(7th Cir. 1994); Marshall v. Baggett, 616 F.3d 849, 852 (8th Cir. 2010); Hoa Huynh, 503 F.3d 

at 854; Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010); and Cotton v. Massachusetts

Mutual Life Insurance Co., 402 F.3d 1267, 1278 (11th Cir. 2005). 

We find the Second Circuit’s survey persuasive. We note only that Conetta and Black 

at least implicitly acknowledge the potential relevance of evidence from a prove-up hearing 

to a challenge to the legal sufficiency of a complaint. See Conetta, 236 F.3d at 76 (rejecting 

the appellant’s argument that the appellee’s complaint, while facially alleging all elements 

of the cause of action, was impermissibly vague on one element because the appellee gave 

testimony on the facts underlying this element before a magistrate judge at the hearing on 

the appellee’s motion for default judgment); Black, 22 F.3d at 1400 (concluding that the 

appellant’s complaint sufficiently pleaded a retaliation claim for purposes of a default 

judgment, in part because “the plaintiff . . . attempt[ed] to set forth the facts supporting his 

claims in an evidentiary proceeding before the district court on damages”). That said, neither 

case involved fatally deficient pleadings, so they do not directly conflict with the other cases 

listed in Mickalis—or, for that matter, with the approach we endorse today.

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(“The Federal Rules of Civil Procedure are designed for the just, speedy, and 

inexpensive disposition of cases on their merits, not for the termination of 

litigation by procedural maneuver. Default judgments are a drastic remedy, not 

favored by the Federal Rules and resorted to by courts only in extreme 

situations.” (footnote omitted)). At the same time, this policy “is 

counterbalanced by considerations of social goals, justice and expediency.”

Rogers, 167 F.3d at 936 (internal quotation marks omitted). A rule permitting 

a party to cure facially deficient pleadings through evidence introduced at a 

damages hearing would disturb the careful compromise our cases have struck 

between fairness, finality, and justice.

As explained above, it is well settled that default judgments must be 

based on competent pleadings. Recognizing an exception to this established 

rule in cases where necessary facts omitted from the complaint emerge for the 

first time at a damages hearing would inject uncertainty into this body of law 

and unfairly disadvantage defaulting defendants. 

To illustrate why this is the case, it is helpful to conceptualize the 

acceptance of supplemental evidence as a de facto amendment to the 

complaint. This Court has long recognized that an amended complaint 

supersedes the original complaint and deprives it of all legal effect unless the 

former expressly refers to or adopts the latter. King v. Dogan, 31 F.3d 344, 346 

(5th Cir. 1994) (per curiam); Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 

(5th Cir. 1985). Correspondingly, “district courts routinely set aside entries of 

defaults when plaintiffs file amended complaints.” Freilich v. Green Energy 

Res., Inc., 297 F.R.D. 277, 283 (W.D. Tex. 2014) (citing cases). This approach 

is consistent both with the basic idea that default judgment may be entered 

only on an existing, valid complaint and with the general principles of notice 

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and fairness enshrined in the Federal Rules governing pleadings and final 

judgments. 

For example, it is widely accepted that “when [a] complaint is amended 

[the] defendant should be entitled to amend the answer to meet the contents 

of the new complaint.” 6 Wright et al., supra, § 1476. Similarly, Federal Rule 

of Civil Procedure 5(a)(2) provides that “[n]o service is required on a party who 

is in default for failing to appear[, b]ut a pleading that asserts a new claim for 

relief against such a party must be served on that party under Rule 4.” And 

Rule 54(c) declares that “[a] default judgment must not differ in kind from, or 

exceed in amount, what is demanded in the pleadings.” The purpose of these 

rules is to ensure that defendants have notice of the contours of all claims upon 

which they may be held liable, and can therefore decide on the basis of the 

pleadings whether to defend the action. See Varnes v. Local 91, Glass Bottle 

Blowers Ass’n of U.S. & Can., 674 F.2d 1365, 1368 (11th Cir. 1982) (“Rule 4, 

and Rule 5(a) as it applies to parties in default for failure to appear, reflect a 

policy that a defendant should receive notice of all claims for relief upon which 

a court may enter judgment against him.”); 10 Wright et al., supra, § 2663 

(“The theory of [Rule 54(c)] is that the defending party should be able to decide 

on the basis of the relief requested in the original pleading whether to expend 

the time, effort, and money necessary to defend the action.”).

Allowing de facto amendment of an inadequate complaint through 

testimony taken at a hearing on damages, without notice to the defendant and 

a concomitant opportunity to respond, would needlessly conflict with these rules

and the policies they serve. Cf. Silge v. Merz, 510 F.3d 157, 161–62 (2d Cir. 

2007) (explaining the purposes of Rule 54(c) and observing that the notice of 

the plaintiff’s request for damages beyond those sought in the original 

complaint was delivered after the entry of default and “may therefore have 

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seemed to come too late in the day for defendants to undo the consequences of 

their prior decision to default”); Varnes, 674 F.2d at 1368–69, 1370–71 (holding 

that improper service of an amended complaint required that the default 

judgment rendered thereon be vacated under Rule 5(a)(2) and denying the 

plaintiff’s request for default on the original complaint because “she should not 

be able to engraft necessary portions of the amended complaint onto the 

original complaint to perfect the original complaint . . . for the sole purpose of 

legitimating a clerk’s default”).10

Moreover, this approach would present practical problems that will not 

burden the regime we endorse today. First, treating testimony at a prove-up

hearing as curative of inadequate pleadings would give trial judges 

impermissible latitude to assist individual parties through the conduct of such

hearings. On one hand, a judge sympathetic to a plaintiff’s claim—or frustrated 

with a defendant’s nonfeasance—could enter default judgment on the plaintiff’s 

facially deficient pleadings, intending to accept testimony at the damages 

hearing that would fill the gaps in the plaintiff’s prima facie case. The default 

judgment would then be immune from attack on the sufficiency of the pleadings, 

depriving the defendant of a critical—and longstanding—avenue of relief. On 

the other hand, a judge skeptical of a plaintiff’s claim—or sympathetic to a 

defendant’s plight—could dismiss the deficient complaint sua sponte or decline 

to enter default judgment rather than hold a hearing that would enable the 

10 The dissent takes issue with our analogy to Rule 5, asserting that “defendants who 

have defaulted simply are not situated similarly to their nondefaulting counterparts.” Post

at 27. But this argument proceeds from two problematic assumptions: first, that a defendant 

who defaults on a facially deficient complaint has forgone a meaningful “opportunity to 

respond” to the plaintiff’s claim for relief; and second, that evidence presented at a prove-up 

hearing “merely makes whole an existing claim” rather than stating a new claim for relief. 

A defective complaint, by definition, does not provide a defendant with the notice that the 

Federal Rules of Civil Procedure contemplate, and therefore fails to state a cognizable claim 

that can be “ma[de] whole.” 

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plaintiff to shore up the pleadings. Either way, such discretion would both 

disserve the policies underlying default judgments and undermine fundamental 

fairness.

Second, and relatedly, permitting prove-up testimony to effectively 

amend a complaint would unfairly give plaintiffs a second bite at the defaultjudgment apple, without providing countervailing safeguards for defendants. 

In the Rule 55(b) hearing context, there is a critical difference between 

evidence that “establish[es] the truth of an[] allegation” and evidence that 

makes out an allegation in the first instance. To take a simple example: In a 

negligence suit arising out of a car accident, the plaintiff’s pleadings assert that 

the defendant drove through a stale red light and collided with the plaintiff’s 

car. After the defendant defaults, the court holds a damages hearing. During 

the hearing, the court takes testimony to “establish the truth” of the wellpleaded factual allegation that the traffic light was red, and the plaintiff testifies 

that the light was in fact green. The court may now decline to enter default 

judgment because there is no proof of one of the facts necessary to assess 

liability. See, e.g., Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 

1981) (“[A] district court has discretion under Rule 55(b)(2) once a default is 

determined to require proof of necessary facts and need not agree that the 

alleged facts constitute a valid cause of action . . . .” (citing 10A Wright et al.,

supra, § 2688)). If, however, the plaintiff’s pleadings allege only that the 

defendant drove “negligently,” testimony at the damages hearing that the 

defendant drove through a stale red light would not “establish the truth of an[] 

allegation”—“negligence” is a bare conclusion of law that the defendant does not 

admit by his default, Nishimatsu, 515 F.2d at 1206—but rather would make a 

novel factual allegation. Accordingly, reading this testimony into the original 

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pleading would let the plaintiff amend the complaint without affording the 

defendant an opportunity to respond.11

This approach would also undermine our policy of enabling defendants 

intelligently to weigh the costs of default against the costs of defending an 

action. For instance, a defendant named in an ostensibly frivolous complaint 

may opt to default rather than incur the costs of defending the suit, only for 

the trial court to elicit testimony in a prove-up hearing that would make the 

claim plausible. Armed with this information, the defendant may well have 

elected to defend the claim; but if the testimony is impliedly incorporated into 

the original complaint, then the defendant cannot revisit his earlier decision. 

Nor, for that matter, can the defendant avail himself of the procedural 

protections associated with amendments to pleadings and variances between 

pleadings and default judgments.12

In sum, the Federal Rules, our precedents and those of our sister circuits, 

and policy and practical considerations lead us to the conclusion that a fatally 

deficient complaint cannot be cured by testimony at a prove-up hearing. Rather, 

a district court in these circumstances has three options. It may (1) dismiss the 

complaint sua sponte under Rule 12(b)(6) without prejudice, allowing the 

plaintiff to amend and refile;13 (2) grant leave to amend the complaint to include 

the facts presented at the hearing; or (3) treat the hearing evidence as 

11 Contrary to the dissent’s contention, post at 26, the defendant is not given a second 

or third “bite at the apple.” He is given a first bite at the only meaningful apple—an 

opportunity intelligently to respond to the plaintiff’s competent claim for relief.

12 We note also that the approach we endorse incentivizes careful pleading. This is 

yet another policy interest that we weigh in the default-judgment balance—and that the 

dissent reasonably may assign a different value. See supra note 3.

13 Our cases recognize that a district court has authority to dismiss a complaint sua 

sponte under Rule 12(b)(6) for failing to state a claim upon which relief can be granted. 

Shawnee Int’l, N.V. v. Hondo Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984). The court need 

only use a “fair” procedure, entailing both notice and an opportunity to respond. Carroll v. 

Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006).

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constituting a de facto amendment to the complaint and then allow the 

defendant to answer the complaint as amended. By requiring or inferring 

amendment, all three approaches “open up” the default and entitle the 

defendant to another opportunity to answer.14

Turning to the facts before us, we hold that the district court abused its 

discretion in entering default judgment against McDonald Transit. As 

explained above, Wooten’s barebones pleadings were inadequate to support a 

default judgment. Although Wooten’s testimony at the prove-up hearing, if 

included in the original complaint, would likely have satisfied our pleading 

standards, it cannot properly be considered part of the pleadings. Accordingly, 

the district court should have dismissed the complaint sua sponte before 

entering a judgment of default or, upon receiving Wooten’s testimony at the 

hearing, either granted leave to amend the complaint or treated the complaint 

as functionally amended. In any event, McDonald Transit should have been 

served with an amended complaint containing Wooten’s “plausible” factual 

allegations, and should have received a corresponding opportunity to answer (or 

properly default), before judgment. We do not condone McDonald Transit’s

conduct in the district court,15 but we cannot uphold the entry of default 

14 In response to the dissent’s concerns regarding the “practical consequence” of our 

decision, post at 28, we emphasize that our ruling today does not require district courts to 

engage in a sua sponte Rule 12(b)(6) analysis in every default-judgment case. Rather, as 

explained in Part III(B)(1), supra, a district court must simply ensure that the underlying 

complaint contains sufficient well-pleaded factual allegations to support the entry of 

judgment, using as guideposts Iqbal’s Rule 12(b)(6) “plausibility” standard and the similar 

default-judgment-pleading standards announced by our sister circuits. Further, although 

our decision rests on the facts now before us, we stress that a district court need not—and, 

in the interest of judicial economy, should not—hold a prove-up hearing when the complaint 

is facially deficient under the standards just enunciated. In these circumstances, the best 

course is to dismiss the complaint without prejudice or grant leave to amend.

15 We express no view on the district court’s finding that McDonald Transit’s default 

was willful. We only observe that although the result in this case may seem surprising in 

light of the defendant’s repeated defaults, we are tasked with charting a course that is 

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judgment on pleadings that are infirm or are subject to de facto amendment

without the notice to the defendant that is ordinarily required.16

IV. CONCLUSION

For the foregoing reasons, we VACATE the district court’s entry of 

default judgment and REMAND with instructions to dismiss the complaint 

with leave to amend.

consistent with the Federal Rules of Civil Procedure and relevant case law, regardless of its 

effect in individual cases.

16 Because we hold that the district court erred in entering default judgment for 

Wooten, we do not reach the issue of whether the district court properly denied McDonald 

Transit’s motion to set aside the default judgment. 

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JACQUES L. WIENER, Circuit Judge, dissenting.

Despite my deep respect for the panel majority, I am convinced that its 

opinion sends the wrong message to the district courts of this circuit and, more 

troubling, that it will eviscerate the role of default judgments in the efficient 

administration of civil litigation. I have long accepted that the noble 

experiment with notice pleading has been relegated to the trash bin of history, 

as recently illustrated by the Supreme Court’s opinions in Twombly1 and 

Iqbal.2 I also accept that Wooten’s threadbare complaint is factually deficient 

in the extreme. Nevertheless, when hereafter asked to grant default 

judgments based on petitions that are anything short of absolute perfection, 

our district courts will almost certainly refuse to do so without first affording

the recalcitrant defendants yet another bite at the apple (here, a third bite!). 

Despite our disfavoring default judgments, they do serve an important purpose 

in the prompt and efficient administration of civil litigation. Yet today’s 

majority ruling will unnecessarily prolong that process and likely eliminate 

the positive role played in it by default judgments. This is why I am compelled 

to dissent.

I note first that, despite stating that “a fatally deficient complaint cannot 

be cured by [such] testimony,” the majority opinion does allow the plaintiff to 

supplement his complaint with evidence introduced at a Rule 55(b)(2) proveup hearing. Indeed, the text of Rule 55(b)(2) and our own precedent in 

Nishimatsu leaves open this avenue for curing a deficient complaint.3 Where 

1 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). 2 Ashcroft v. Iqbal, 556 U.S. 662 (2009). 3 The majority opinion declares that “the text of the hearing provision presupposes 

valid allegations in the complaint,” and deals with subsection (b)(2)(C) by pointing out that 

“to ‘establish the truth of any allegation,’ there must be an existing allegation to assess.” Yet,

if a defendant defaults, all well-pleaded factual allegations must be taken as true. See 

Nishimatsu Constr. Co. v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). True, 

factual allegations regarding damages must still be proven. See U.S. for the Use of M-CO 

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the majority and I differ is in what should follow the prove-up hearing. The 

majority would have the district court grant the defaulting defendant yet 

another opportunity to answer and seek Rule 12(b)(6) or summary judgment 

relief; I would affirm the court’s grant of the default judgment.

The majority bases its holding primarily on policy considerations, 

analogizing to Federal Rule of Civil Procedure 5(a)(2), which requires the 

defendant to receive notice if the plaintiff’s pleadings add a “new claim for 

relief.”4 The majority warns that, unless we extend this rule to follow Rule 

55(b)(2) hearings, we will (1) give the plaintiff the right to “amend the 

complaint without affording the defendant an opportunity to respond,” and (2) 

“undermine our policy of enabling defendants intelligently to weigh the costs 

of default against the costs of defending an action.”

But defendants who have defaulted simply are not situated similarly to 

their nondefaulting counterparts. A defaulting defendant has, in fact, already 

had an opportunity to respond (in this case, two opportunities). Moreover, a 

complaint supplemented by facts revealed at a Rule 55(b)(2) hearing does not 

add “a new claim for relief”5—it merely makes whole an existing claim, albeit 

a deficient one.

At first glance, holding a defendant to its initial default may appear to 

be unfair. But, doing so is a consequence of the defendant’s own inaction. 

Furthermore, we serve “our policy of enabling defendants intelligently to weigh 

the costs of default” so long as we give them a clear rule to follow. If defendants 

Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987). But subsections 

(b)(2)(A) and (b)(2)(B) of Rule 55 provide the basis for hearings to adduce evidence of 

damages. Thus, subsection (b)(2)(C) serves no purpose unless “allegation” refers to 

something broader than “well-pleaded factual allegation.” If that is the case, then a Rule 

55(b)(2) hearing may be conducted to establish the truth of factually deficient allegations, 

including those in Wooten’s complaint.

4 FED. R. CIV. P. 5(a)(2).

5 FED. R. CIV. P. 5(a)(2).

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know that they will be bound by the facts proven at a Rule 55(b)(2) hearing, 

they can weigh that factor when making their initial decision whether or not 

to default.

Giving me even greater concern is the practical consequence of the 

majority’s decision. It requires our district courts to rule, sua sponte and 

without briefing, on the sufficiency of plaintiffs’ complaints, all the while giving 

those courts every incentive to err on the side of insufficiency. Consider a 

hypothetical in which the viability of the plaintiff’s complaint is a close call, 

and a Rule 12(b)(6) motion would likely be contested vigorously but for the 

defendant’s default. After the district court has held a Rule 55(b)(2) hearing, 

the majority would then have it make a ruling sua sponte as to whether the 

complaint was deficient in the first place. I cannot believe that a district court 

would ever hold the complaint sufficient and enter default judgment on it: If 

the court should do so at that point, the defendant would lose nothing by 

entering the case, essentially to litigate its Rule 12(b)(6) case via a Rule 60(b) 

motion. The majority thus provides yet another safety net for the previously 

defaulting defendant, who would also enjoy a generous standard of review in 

its effort to convince us on appeal that the district court erred in holding the 

original complaint sufficient.6 

On one hand, a district court that enters a default judgment on a 

complaint that’s sufficiency is truly a close call would face a significant 

probability of reversal. If, on the other hand, the district court should require 

amendment and notice to the defaulting defendant, the plaintiff might not even 

6 “Because of the seriousness of a default judgment, and although the standard of 

review is abuse of discretion, even a slight abuse of discretion may justify reversal.” In re 

Chinese Manufactured Drywall Prods. Liab. Litig., 742 F.3d 576, 594 (5th Cir. 2014) (quoting 

Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000)) (internal quotation marks omitted).

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have the right to appeal.7 Thus, when faced with a marginal complaint, a 

district court will likely opt to err on the side of requiring amendment (either 

actual or de facto) and providing the defendant in default a new opportunity to 

respond. 

This result is inordinately lopsided and, even worse, favors the wearer of 

the black hat over the wearer of the white hat. Our default judgment 

jurisprudence carefully balances our preference for judgments on the merits 

with “considerations of social goals, justice and expediency.”8 We do not honor 

this balance, much less retain it, by allowing the defaulting defendant to lie 

behind the log until after a Rule 55(b)(2) hearing, then have the option to jump 

into the fray and litigate the merits as though his default had never occurred. 

Under today’s decision, the defendant may comfortably sit back while the 

plaintiff goes to the trouble, time, and expense of a Rule 55(b)(2) hearing, 

leaving the district court to grapple with legal issues that are truly the 

defendant’s own duty to raise and support. I see this as grossly unfair to the 

innocent plaintiff and a waste of judicial resources. Far better and fairer, in 

my view, to hold the defaulting party to his default. These are the reasons why 

I must respectfully dissent.

7 The plaintiff’s only avenue for appeal may be by the district court’s discretion via 28 

U.S.C. § 1292(b).

8 Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999) (quoting 

Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990)).

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