Dishmon v. Newkirk Logistics Inc

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
SHAQUITA DISHMON, on behalf of
herself and others similarly situated,
Plaintiff,
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v. 	§ 	CIVIL ACTION NO. 3:23-CV-2708-B
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NEWKIRK LOGISTICS, INC., 	§
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Defendant. 	§
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Shaquita Dishmon’s Motion for Default Judgment (Doc. 19).
For the reasons provided below, the Motion is DENIED WITHOUT PREJUDICE.
I.
BACKGROUND
This is an overtime compensation dispute brought under the Fair Labor Standards Act
(“FLSA” or the “Act”). Newkirk Logistics, Inc. (“Newkirk”) is a logistics company that employed
Dishmon as a last-mile delivery driver from August 17, 2022, through July 18, 2023. Doc. 1, Compl.
¶¶ 15, 22. On a given workday, Newkirk scheduled Dishmon to work “at least 10 hours” and
regularly asked her to complete additional tasks outside of her scheduled shift’s hours. Doc. 19-1,
Decl. Dishmon ¶ 7. Regardless of how many hours she worked, Newkirk paid Dishmon a fixed daily
rate. Doc. 1, Compl. ¶ 29. Thus, throughout her period of employment, Dishmon worked over 40
hours per week, Doc. 19-1, Decl. Dishmon ¶ 10, without receiving any additional compensation to
reflect overtime, Doc. 1, Compl. ¶ 31.
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Dishmon claims Newkirk misclassified her as an independent contractor when she was in
fact an employee entitled to the protections of the FLSA—including the Act’s overtime compensation
requirements. Id. ¶¶ 3, 5-6. Newkirk instructed and trained Dishmon throughout her employment,
set her work schedule, and required her to begin and end work at its facilities. Id. ¶¶ 32-33, 37, 39.
In December 2023, Dishmon filed her Complaint, alleging that Newkirk violated the FLSA
by failing to pay overtime compensation. See id. ¶ 66. Dishmon also sought an FLSA collective action,
alleging that Newkirk similarly failed to pay overtime compensation to its other delivery drivers. See
id. ¶¶ 51-59, 66. Dishmon seeks (for herself and other similarly situated individuals) all unpaid
overtime wages for the three-year period preceding the filing of the Complaint, as well as liquidated
damages, attorney’s fees and costs, and post-judgment interest. Id. ¶ 68.
Dishmon served process on Newkirk in April 2024. See Doc. 6, Aff. Service, 1. Also in April
2024, Dishmon informed the Court that four additional ex-Newkirk employees opted into the
action: Jason Pratt, Jeramie R. Gaines, Reginald D. Deloney, and Steven E. Williams (collectively
referred to as “Opt-In Plaintiffs”). See Doc. 7, Notice, 1. Newkirk failed to answer or otherwise
respond to the Complaint, and in September 2024, the Clerk of Court entered default. See Doc. 13,
Entry Default. In May 2025, Dishmon filed its Motion for Default Judgment. See generally Doc. 19,
Mot. The Court considers that Motion below.
II.
LEGAL STANDARD
Under Rule 55 of the Federal Rules of Civil Procedure, upon motion of the plaintiff, federal
courts have the authority to enter a default judgment against a defendant who has failed to plead or
otherwise defend against the relief sought. F ED . R. CIV. P. 55(a), (b)(2). That being said, “[d]efault
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judgments are 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) (footnotes and citations omitted). A party is not entitled to a default judgment merely because
the defendant is technically in default. Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir. 1996) (per curiam)
(citation omitted). Instead, “default judgment is committed to the discretion of the district court.”
Chevron Intell. Prop., L.L.C. v. Allen, No. 7:08-CV-98-O, 2009 WL 2596610, at *2 (N.D. Tex. Aug. 24,
2009) (O’Connor, J.) (citing Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977)).
In determining whether a default judgment should be entered against a defendant, courts
have developed a three-part analysis. J & J Sports Prods., Inc. v. Morelia Mexican Rest., Inc., 126 F. Supp.
3d 809, 813 (N.D. Tex. 2015) (Boyle, J.) (citation omitted). First, courts consider whether the entry
of a default judgment is procedurally warranted. See Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th
Cir. 1998). Second, courts assess the substantive merits of the plaintiff’s claims and determine
whether there is a sufficient basis in the pleadings for the judgment. See Nishimatsu Constr. Co., Ltd.
v. Hous. Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975) (“[A] default is not treated as an absolute
confession by the defendant of his liability and of the plaintiff’s right to recover.” (citations omitted)).
“Third, courts determine what form of relief, if any, the plaintiff should receive.” Morelia Mexican,
126 F. Supp. 3d at 813 (citation omitted).
III.
ANALYSIS
The Court concludes that default judgment against Newkirk is procedurally warranted.
However, the Complaint lacks a sufficient factual basis for entry of judgment as to Opt-In Plaintiffs.
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Accordingly, neither Dishmon nor Opt-In Plaintiffs are currently entitled to a default judgment
against Newkirk.
A. 	An Entry of Default Judgment Is Procedurally Warranted.
To determine whether default judgment is procedurally warranted, the Court considers a list
of factors set forth by the Fifth Circuit, known as the Lindsey factors:
[1] whether material issues of fact are at issue; [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.
Lindsey, 161 F.3d at 893 (citation omitted).
After applying the six Lindsey factors to Dishmon’s Motion, the Court determines that
default judgment is procedurally warranted. First, Newkirk has not filed any responsive pleading, so
there are no material facts in dispute. See id.; Nishimatsu Constr., 515 F.2d at 1206 (noting that “[t]he
defendant, by his default, admits the plaintiff’s well pleaded allegations of fact”). Second, Newkirk’s
“failure to respond threatens to bring the adversary process to a halt, effectively prejudicing
[Dishmon’s and Opt-In Plaintiffs’] interests.” Ins. Co. of the W. v. H & G Contractors, Inc., No. C-10-
390, 2011 WL 4738197, at *3 (S.D. Tex. Oct. 5, 2011) (citing Lindsey, 161 F.3d at 893) (other
citation omitted). Third, the grounds for default are clearly established because Newkirk has had
nearly two years to respond to the Complaint and over seven months to respond to the present
Motion or provide an explanation for its delay. Cf. Ann Best Elite Temporaries, Inc. v. KNR Grp., Inc.,
216 F.3d 1080 (5th Cir. 2000) (per curiam) (holding default judgment to be inappropriate where
defendant sent letter to court explaining his failure to appear was due to financial privation). Fourth,
there is no evidence before the Court to indicate that Newkirk’s silence is the result of a “good faith
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mistake or excusable neglect.” Lindsey, 161 F.3d at 893. Fifth, Dishmon and Opt-In Plaintiffs seek
only the relief the law provides them, and “the Court is aware of no applicable defense.” See John
Perez Graphics & Design, LLC v. Green Tree Inv. Grp., Inc., No. 3:12-CV-4194-M, 2013 WL 1828671,
at *3 (N.D. Tex. May 1, 2013) (Lynn, J.) (citation omitted). Sixth, and finally, the Court is not aware
of any facts that would give rise to “good cause” to set aside the default if challenged by Newkirk.
Lindsey, 161 F.3d at 893 (quoting F ED . R. C IV. P. 55(c)). Therefore, the Court concludes that default
judgment is procedurally warranted.
B. 	There is Not a Sufficient Basis for Judgment in the Pleadings.
Next, the Court must review the pleadings to determine whether Dishmon and Opt-In
Plaintiffs have established a viable claim for relief. See Nishimatsu Constr., 515 F.2d at 1206. In doing
this, the Court assumes that, due to its default, Newkirk admits all well-pleaded facts in the
Complaint. Id. But a “defendant is not held to admit facts that are not well-pleaded or to admit
conclusions of law.” Id.
In conducting this portion of the analysis, “the Fifth Circuit looks to [Federal Rule of Civil
Procedure 8] case law for guidance.” Morales v. Rausch Grp. & Assocs., LLC, No. 3:19-CV-2850-B,
2020 WL 6583023, at *3 (N.D. Tex. Nov. 10, 2020) (Boyle, J.) (citation omitted). “Rule 8(a)(2)
requires a pleading to contain ‘a short and plain statement of the claim showing that the pleader is
entitled to relief.’” Wooten v. McDonald Transit Assocs., Inc., 788 F.3d 490, 498 (5th Cir. 2015). “The
factual allegations in the complaint need only ‘be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful
in fact).’” Id. (citation omitted). But “the pleading must present ‘more than an unadorned, the-
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defendant-unlawfully-harmed-me accusation.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
Dishmon alleges that Newkirk violated the FSLA by failing to pay overtime compensation,
and she seeks a default judgment from the Court that she and Opt-In Plaintiffs are entitled to those
payments. See Compl. ¶ 66. Although FLSA suits may be brought as collective actions, “courts have
expressed concern about whether opt-in plaintiffs are entitled to default judgment on a complaint in
which they are not named but where the intent to proceed as a collective action is clear.” Hendrickson
v. Hall, No. 3:22-CV-2930-S-BN, 2023 WL 8000293, at *4 (N.D. Tex. Sept. 29, 2023) (Horan, Mag.
J.) (emphasis added) (citing Rodney v. Digit. Media, Inc., No. 1:18-CV-1644-MHC, 2019 WL 5106277,
at *3 (N.D. Ga. June 11, 2019)). In such cases, where no collective action was first certified, “most
courts conclude that plaintiffs should first amend the complaint to add the opt-in plaintiffs as named
plaintiffs and should serve the amended complaint on defendants to afford them the chance to
respond.” Id. (collecting cases); Stafford v. Psychiatric Servs. of E. Tenn., LLC, No. 3:23-CV-209-CLC-
JEM, 2024 WL 4709982, at *2-3 (E.D. Tenn. Nov. 7, 2024) (finding the pleadings did not support
entering default judgment where the FLSA case had “never been certified as a collective action” and
there were no facts about the opt-in plaintiff that could be deemed admitted by the defendant), report
and recommendation adopted, No. 3:23-CV-209, 2024 WL 4899995 (E.D. Tenn. Nov. 26, 2024).
Opt-in plaintiffs cannot rely on declarations submitted with a motion for default judgment
in lieu of well-pleaded allegations in a complaint. Hendrickson, 2023 WL 8000293, at *4 (finding it
“is not enough” for an opt-in plaintiff to instead “attach declarations to the motion for default
judgment” to add facts that they could have presented in the complaint); Prentice v. Transcend
DVentures, No. 1:23-CV-10011, 2023 WL 8313282, at *3 (E.D. Mich. Dec. 1, 2023) (denying motion
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for default judgment that included “declarations of each opt-in plaintiff in which they each detail
when [the defendant] did not pay them, the hours they worked during that time period, and their
compensation rate” because “there [were] no well-pleaded allegations as to those [opt-in] Plaintiffs
that [could] be deemed as admitted by Defendants” in the complaint (citation modified)); see also
James v. Claiborne, No. CIV.A. 07-1570, 2009 WL 994951, at *4-5 (W.D. La. Apr. 13, 2009) (finding
that even conditional certification of an FLSA collective action was insufficient to entitle opt-in
plaintiffs to default judgment where their claims were never added in an amended complaint).
“When the pleadings support default judgment for the named plaintiff but not the opt-in
plaintiffs, courts have declined to grant default judgment in favor of only the named plaintiff.”
Hendrickson, 2023 WL 8000293, at *4 (citation omitted); Bhagwat v. Queens Carpet Mall, Inc., No. 14-
cv-5474 (ENV) (PK), 2017 WL 1365121, at *6 (E.D.N.Y. Mar. 10, 2017) (“When courts have denied
motions for default judgment by FLSA opt-in plaintiffs and allowed for amendment of the
complaint, those court have also deferred granting default judgment to the original defendant until
after the opt-in plaintiffs are formally joined and the defendants have been duly served with the
amended complaint.”). This is because a named plaintiff, in seeking default judgment for herself
and for opt-in plaintiffs, demonstrates her continued intent to proceed collectively. See Hendrickson,
2023 WL 8000293, at *4; Rodney, 2019 WL 5106277, at *4; Tejada v. La Selecta Bakery, Inc., No.
17CV5882CBARER, 2019 WL 2343909, at *3 (E.D.N.Y. May 1, 2019) (“[A]n abundance of caution
is warranted because there is no evidence that the Named Plaintiffs now intend the case to proceed
on an individual basis; to the contrary, they seek default judgment both for themselves and the Opt-
in Plaintiffs.”), report and recommendation adopted, No. 17CV5882CBARER, 2019 WL 2341680
(E.D.N.Y. June 3, 2019).
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Here, Dishmon seeks default judgment for her own claim as well as the claims of all Opt-In
Plaintiffs. See Doc. 19, Mot. ¶¶ 10-14. While Opt-In Plaintiffs provided the Court with their written
consent, see Doc. 7, Notice, 1, and attached declarations to the Motion, see, e.g., Doc. 19-3, Decl.
Pratt, 1, they are not named plaintiffs in the Complaint. Dishmon has not sought to amend the
Complaint to add Opt-In Plaintiffs as parties. Nor has Dishmon sought collective action certification
from the Court. Accordingly, the Complaint lacks factual allegations to support each Opt-In
Plaintiff’s respective claim, and the Court cannot grant default judgment in their favor at this time.
See Hendrickson, 2023 WL 8000293, at *4. Furthermore, because the Court cannot grant default
judgment for Opt-In Plaintiffs, and Dishmon chose to proceed by collective action, the Court
declines to enter default judgment for Dishmon. See id.
IV.
CONCLUSION
For the reasons discussed above, the Court DENIES Dishmon’s Motion for Default
Judgment (Doc. 19) WITHOUT PREJUDICE. Dishmon has 21 days from the date of this order
to amend her complaint to add Opt-In Plaintiffs as named plaintiffs. If Dishmon chooses to file an
amended complaint, she must serve Newkirk with the amended complaint within 21 days of filing.
SO ORDERED.
SIGNED: January 29, 2026.
_________________________________
JANE J. BOYLE
SENIOR UNITED STATES DISTRICT JUDGE
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