Luna v. Wexford Health Sources, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JESSE BEN LUNA,
Plaintiff,
v. 	Case No. 2:25-cv-00133-KWR-LF
WEXFORD HEALTH SOURCES, INC.,
et al.
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
REGARDING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
THIS MATTER is before the Court on Plaintiff Jesse Luna’s Motion for Default
Judgment (Doc. 5), filed June 6, 2025. United States District Judge Kea Riggs referred this case
to me pursuant to 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Virginia Beach Fed. Sav. & Loan Ass’n
v. Wood, 901 F.2d 849 (10th Cir. 1990), “to conduct hearings, if warranted, including evidentiary
hearings, and to perform any legal analysis required to recommend to the Court an ultimate
disposition of the case.” Doc. 14 at 1. I recommend that the Court deny the motion.
BACKGROUND
Mr. Luna commenced this action in New Mexico state court, and defendant Wexford
Health Sources, Inc. (“Wexford”) removed the case to this Court on February 7, 2025. Doc. 1 at
1. Mr. Luna served Wexford with his complaint on January 10, 2025, id. ¶ 2, but the remaining
defendants have yet to be served. Wexford filed its answer to Mr. Luna’s complaint on February
17, 2025. See Doc. 2. On June 5, 2025, Mr. Luna filed a Motion for Default Judgment pursuant
to Federal Rule of Procedure 55, requesting that default judgment be entered “against all
Defendants that have not answered his original complaint.” Doc. 5 ¶ 1.
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On November 20, 2025, the Court issued an order to show cause requiring Mr. Luna to
effect service on the remaining defendants or provide the Court with a written explanation
showing good cause why service has not been made. Doc. 13 at 2. On December 5, 2025, Mr.
Luna timely responded to the order to show cause and explained that he has had trouble finding
the addresses for some of the defendants. Doc. 15 at 1. On December 11, 2025, the Court
permitted Mr. Luna to proceed in forma pauperis and ordered Mr. Luna to provide the Court with
the defendants’ addresses so that the Court may effectuate service. Doc. 16 at 2.
ANALYSIS
“When a party against whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.” F ED. R. C IV. P. 55(a). However, “default judgment cannot be entered
against a defendant unless service of process is effected, or the defendant waives or accepts
service.” Gonzalez v. Sandoval Cnty. Det. Ctr. and/or Med. Dep’t, No. 1:07-cv-00864-JB-KBM,
2008 WL 11451939, at *1 (D.N.M. Feb. 6, 2008) (citing Nikwi v. Ross Sch. of Aviation, Inc., 822
F.2d 939, 941 (10th Cir. 1987); Texas W. Fin. Corp. v. Edwards, 797 F.3d 902, 905 (10th Cir.
1986)); see also Ashby v. McKenna, 331 F.3d 1148, 1152 (10th Cir. 2003) (holding that entry of
default against a defendant before it is obliged to file an answer is incorrect as a matter of law).
I recommend that the Court find that default judgment cannot be entered against the
defendants in this matter. Wexford is the only defendant to have been served thus far. Doc. 1 ¶
2. Wexford timely removed the case to this Court on February 7, 2025, see Doc. 1, and filed its
answer to Mr. Luna’s complaint on February 17, 2025, see Doc. 2. The remaining defendants
have not been served and have no obligation to file an answer to Mr. Luna’s complaint. See Doc.
16 (ordering Mr. Luna to provide the addresses of the remaining defendants so that the Court
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may effectuate service upon them). Entry of default against these defendants at this point in the
proceedings thus would be incorrect as a matter of law. See Ashby, 331 F.3d at 1152.
CONCLUSION
For the foregoing reasons, I recommend that the Court DENY Mr. Luna’s Motion for
Default Judgment (Doc. 5). Defendant Wexford has timely appeared and filed its answer in this
matter. The remaining defendants have yet to be served and thus have no obligation to file an
answer in this matter.
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). Written objections
must be both timely and specific. United States v. One Parcel of Real Prop., With Buildings,
Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73
F.3d 1057, 1060 (10th Cir. 1996). A party must file any objections with the Clerk of the
District Court within the fourteen-day period if that party wants to have appellate review
of the proposed findings and recommended disposition. Failure to file timely and specific
objections will result in waiver of de novo review by a district or appellate court. Id. In
other words, if no objections are filed, no appellate review will be allowed.
Laura Fashing
United States Magistrate Judge
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