Palafox v. Zamudio
| Docket Number | Civil Action 5:22-CV-73 |
| Decision Date | 12 June 2023 |
| Parties | LUIS PALAFOX, JR., Plaintiff, v. FLAVIO EDUARDO ZAMUDIO, JR., Defendant. |
| Court | U.S. District Court — Southern District of Texas |
REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Luis Palafox, Jr. has filed a Motion, Supplemental Motion and Amended Supplemental Motion for Default Judgment against Defendant Flavio Eduardo Zamudio, Jr. (Dkt. Nos. 18, 20, 26). United States District Judge Marina Garcia Marmolejo referred the motion to the Undersigned for a Report and Recommendations.
For the reasons explained below, the Court should grant Plaintiff's Motion for Default Judgment as to liability and, based on the evidentiary hearing that the Undersigned held, award damages of $635,000.
On July 28, 2022, Plaintiff Luis Palafox, Jr. filed a complaint against Flavio Eduardo Zamudio, Jr. for damages that Plaintiff suffered after being struck by Defendant's vehicle while running. (Dkt. No. 1). According to Plaintiff's Complaint (the “Complaint”), on November 17, 2021, Plaintiff was running in Laredo, Texas along Country Club Drive, and Defendant was driving on Country Club Drive. Id. at 2. Defendant lost control of his Peugeot vehicle and struck Plaintiff. Id. Defendant fled the scene. Id. Plaintiff suffered “severe injuries,” and underwent medical treatment for his injuries. Id. Plaintiff alleges that Defendant's negligence proximately caused the collision and resulting injuries and damages to Plaintiff. Id. In support of his negligence allegation, Plaintiff alleges the following negligent acts and omissions by Defendant:
Plaintiff also alleges that Defendant's acts and omissions constitute gross negligence for which exemplary damages should be imposed. Id. at 3. Plaintiff seeks liquidated damages in the amount of $144,853.04.[1] (Evidentiary Hearing on May 10, 2023 at 3:02). Plaintiff also seeks unliquidated damages in the amount of $4,550,000 in the form of:
(Dkt. No. 1 at 3-4).[2]
After being served with summons and a copy of the Complaint on August 11, 2022, Defendant “did not file a responsive pleading or otherwise defend the suit.” (Dkt. No. 18 at 1). On January 18, 2023, Plaintiff filed a Request for Entry of Default. (Dkt. No. 15). That same day, the Clerk filed an Order on Entry of Default. (Dkt. No. 16). On January 30, 2023, Plaintiff filed his Motion for Default Judgment. (Dkt. No. 18). On February 28, 2023, the Undersigned ordered Plaintiff to supplement his motion for default judgment to include an adequate discussion of whether default judgment is both procedurally appropriate and substantively warranted in this case. (Dkt. No. 19). On March 1, 2023, Plaintiff filed a Supplemental Motion for Default Judgment addressing most of the Lindsey factors.[3] (Dkt. No. 20). In advance of the evidentiary hearing, Plaintiff filed his witness and exhibit lists, along with exhibits, on May 8, 2023. (Dkt. No. 22).
The hearing was held on May 10, 2023. (Minute Entry dated May 10, 2023). Pursuant to the Undersigned's oral order at the hearing, Plaintiff filed redacted exhibits on May 12, 2023. (Dkt. No. 24). On May 16, 2023, the Undersigned ordered Plaintiff to file a second supplement to the Motion for Default Judgment. (Dkt. No. 25). Plaintiff filed the second Supplemental Motion for Default Judgment on May 17, 2023. (Dkt. No. 26).
Federal Rule of Civil Procedure 55 allows the Court to enter default judgement only after a Clerk's entry of default. Fed.R.Civ.P. 55. “A default judgment is a judgment on the merits that conclusively establishes the defendant's liability.” BBVA USA v. Hall, No. 5:19-CV-99, 2020 WL 9814212, at *1 (S.D. Tex. Dec. 18, 2020) (citing United States ex. rel. M-CO Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987)). A default judgment is a “drastic remedy, not favored by the Federal Rules, and resorted to by courts only in extreme situations.” Sun Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th Cir. 1989). “A party is not entitled to a default judgment as a matter of right, even where the defendant is technically in default.” Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996).
The decision to grant default judgment is left to the sound discretion of the district court. Sindhi v. Raina, 905 F.3d 327, 330-31 (5th Cir. 2018). In determining whether default judgment should be granted, courts must (1) “consider whether entry of default judgment is appropriate under the circumstances;” and (2) “assess the merits of the plaintiff's claims and find a sufficient basis in the pleadings for the judgment.” J & J Sports Prods., Inc. v. Guerrero, No. 5:17-CV-92, 2018 WL 375391, at *1 (S.D. Tex. Jan. 11, 2018).
“If the court determines that default judgment should be granted, the court must also determine the appropriate amount of damages.” People's United Equipment Finance Corp. v. Northern Yankee, LLC, No. H-17-3528, 2018 WL 4334056, at *2 (S.D. Tex. June 6, 2018). Generally, damages should not be awarded without a hearing. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979). It is the plaintiff's burden to provide an evidentiary basis for the damages he seeks. Hall, 2020 WL 9814212 at *1.
For the reasons below, the Undersigned concludes default judgment is appropriate under the circumstances.[4]
The factors relevant to this inquiry include: “(1) whether material issues of fact exist; (2) whether there has been substantial prejudice; (3) whether the grounds for default are clearly established; (4) whether the default was caused by a good faith mistake or excusable neglect; (5) the harshness of a default judgment; and (6) whether the court would think itself obliged to set aside the default on the defendant's motion.” Guerrero, 2018 WL 375391 at *1. (citing Lindsey, 161 F.3d at 893). Additionally, the Court must consider whether Defendant is a minor, incompetent, or a military servicemember. Bank of N.Y. Mellon Tr. Co., NA v. Hancock, No. 5:19-CV-270-H-BQ, 2020 WL 2989023, at *2 (N.D. Tex. June 4, 2020) (citations omitted).
Here, Plaintiff has shown that the Lindsey factors weigh in favor of entering default judgment. First, no material issues of fact exist when Defendant fails to file a responsive pleading. See Nishimatsu Const. Co., Ltd. v. Houston Nat. Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (“The defendant, by his default, admits the plaintiff's well pleaded allegations of fact.”). Second, there is substantial prejudice to Plaintiff's interest in pursuing his rights resulting from Defendant's failure to respond. See Insurance Co. of the West v. H & G Contractors, Inc., No. CIV.A. C-10-390, 2011 WL 4738197, at *1 (S.D. Tex. Oct. 5, 2011) (citing Lindsey, 161 F.3d at 893). Third, the grounds for default have been clearly established due to Defendant's failure to answer or defend. See Guerrero, 2018 WL 375391 at *2. Fourth, there is no evidence before the Court indicating that Defendant's silence is the result of a good-faith mistake or excusable neglect. Id. (citing Lindsey, 161 F.3d at 893). Fifth, “the harshness of default judgment is mitigated as time passes without an appearance or filing from an opposing party,” which in this case has been over nine months. Id. Sixth, the Undersigned is unaware of any facts which would give rise to good cause to set aside the default if challenged by Defendant. Id.; see also CJC Holdings v. Wright & Lato, Inc., 979 F.2d 60, 64 (5th Cir. 1992) ().
Finally, Defendant is not a minor, an incompetent person, or a military servicemember. (Dkt. Nos. 11-1, 26-A). Regarding Defendant's military status, Plaintiff's attorney, Averie Maldonado, swore in an affidavit that Defendant “is not in the military service of the United States, as shown by the affidavit of Joseph Gullota.” (Dkt. No. 11-1). In his affidavit, Mr. Gullota states that pursuant to the Servicemembers Civil Relief Act (SCRA) he investigated and determined that “FLAVIO EDUARDO ZAMUDIO” is not in Active Duty Status. (Dkt. No. 11-2 at 1). Defendant's name is Flavio Eduardo Zamudio, Jr.
Nonetheless, Plaintiff has set forth grounds for belief that Defendant would not qualify for the protections accorded under the SCRA which is intended to protect the rights of persons in military service. See 50 U.S.C. § 3931 (). Plaintiff asserts that Defendant is neither a U.S. citizen nor a lawful permanent resident. (Dkt. No. 6). Title 10, United States Code, Section 504 defines persons not qualified to enlist in any armed forces to include persons who are neither a citizen nor a lawful permanent resident. Because Defendant would not qualify to enlist in the armed forces, there are grounds to believe Defendant would not qualify for the protections under the SCRA.
For these reasons, an entry of default judgment is appropriate here. See Rogers v. Hartford Life & Acc. Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999) ().
To continue reading
Request your trial