Reported / Citable
Background
Ludovico Tomasso moved for default judgment against defendants 9371893 Canada Inc. and Forza 5 Energie Inc. The defendants had not appeared, and Tomasso asserted that Bonnie Peddle had accepted service for the corporate entities.
The record did not show that Tomasso had requested, or that the clerk had entered, default against any defendant. Tomasso’s certificate of service for the default-judgment motion stated only that it was served on “all known counsel of record,” although Peddle was proceeding pro se and the remaining defendants had not appeared.
The Court’s Holding
Magistrate Judge Andrew M. Edison recommended denying the motion without prejudice to refiling. A default judgment request is premature until the clerk first enters default under Rule 55(a), and Tomasso had not sought or obtained that entry.
The recommendation also identified deficient service. The certificate did not establish a permissible method of service, and Southern District of Texas Local Rule 5.5 requires a default-judgment motion to be served on the defendant by certified mail, return receipt requested. Tomasso also had not supplied facts or authority showing that Peddle was authorized to accept service for the corporate defendants.
Key Takeaways
- A plaintiff must obtain a clerk’s entry of default before seeking default judgment.
- In the Southern District of Texas, a default-judgment motion must be served by certified mail with return receipt requested.
- A plaintiff seeking default against a corporation must establish that service on an individual was authorized and effective.
Why It Matters
The recommendation underscores that nonappearance alone does not support default judgment. Plaintiffs must complete Rule 55’s sequence and document valid service before the court will consider the requested relief.
The parties had 14 days after service of the memorandum and recommendation to file objections.