Opinion
No. 3:16-CV-0938-M (BH)
07-15-2016
ISRAEL CORONEL, ID # 1780504, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Referred to U.S. Magistrate Judge
FINDINGS , CONCLUSIONS, AND RECOMMENDATION
Pursuant to Special Order 3-251, this case has been referred for findings, conclusions, and recommendation. Before the Court is the petitioner's Motion for Summary Judgement with a Hearing and a Ruling, received July 8, 2016 (doc. 18). Because he essentially seeks a default judgment on grounds that the respondent did not timely file an answer as ordered, his filing is liberally construed as a motion for default judgment. Based on the relevant filings and applicable law, the motion should be DENIED.
Rule 55 of the Federal Rules of Civil Procedure sets forth the conditions under which default may be entered against a party, as well as the procedure for seeking the entry of default judgment. There is a three-step process for securing a default judgment. See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). First a default occurs when a party "has failed to plead or otherwise defend" against an action. Fed. R. Civ. P. 55(a). Next, an entry of default must be entered by the clerk when the default is established "by affidavit or otherwise." See id.; N.Y. Life Ins., 84 F.3d at 141. Third, a party may apply to the clerk or the court for a default judgment after an entry of default. Fed. R. Civ. P. 55(b); N.Y. Life Ins., 84 F.3d at 141.
In this case, the docket reflects that the Attorney General for the State of Texas was served electronically on April 8, 2016, and ordered to file an answer to the petitioner's habeas petition within sixty days. (doc. 11.) On June 7, 2016, the respondent filed a motion requesting an extension of the deadline to file a response to July 7, 2016. (doc. 14.) The motion was granted. (doc. 15.) The respondent timely filed the response on July 7, 2016. (doc. 17.) The respondent has therefore not failed to timely plead or otherwise defend this action.
Moreover, "a party is not entitled to a default judgment as a matter of right, even where the defendant is technically in default." Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (quoting Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996)). "In fact, '[d]efault judgments are a drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme situations.'" Lewis, 236 F.3d at 767 (quoting Sun Bank of Ocala v. Pelican Homestead and Savings Ass'n., 874 F.2d 274, 276 (5th Cir.1989)). Because the respondent has appeared to defend this action and has timely sought extensions of time to answer the petition and the new claims raised for the first time in the reply, the petitioner's motion for default judgment (doc. 18) should be DENIED.
SO RECOMMENDED this 15th day of July, 2016.
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 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 findings, conclusions 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 aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE