PNC Bank, National Association v. Castlewall Enterprise, LLC, et al.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff.
V.
CASTLEWALL ENTERPRISE, LLC,
et al.,
Defendants.
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CIVIL ACTION NO. 3:25-cv-00361
OPINION AND ORDER
This case has been referred to me for all pretrial purposes. See Dkt. 35.
Pending before me is Plaintiff PNC Bank, National Association’s motion for default
judgment. See Dkt. 33. It would be inappropriate at this juncture to consider the
motion given the unresolved service issues and the fact that default should not
have been entered.
PNC instituted this case against Defendants on May 16, 2025. See Dkt. 1.
Defendants Castlewall Enterprise, LLC and Tanya Bell (Castlewall’s registered
agent) were served simultaneously at the Bell residence on June 13, 2025. See
Dkts. 13, 14. Defendant Keith Bell was served on December 2, 2025. See Dkt. 25.
On February 4, 2026, PNC moved for entry of default against all three defendants.
See Dkt. 29. PNC did not include a certificate of service for its motion for entry of
default. On February 11, 2026, default was entered, even though the record
suggests that no defendant was served with PNC’s motion for entry of default. On
March 10, 2026, PNC filed a motion for default judgment. See Dkt. 33.
“Courts generally require that some notice be given to a defendant between
the time of initial service of process and entry of default judgment.” Regal Nails,
Salon & Spa, LLC v. Ha, No. 20-14388, 2021 WL 4976529, at *4 (S.D. Fla. Sept. 9,
2021) (collecting cases). The Federal Rules of Civil Procedure require that orders,
United States District Court
Southern District of Texas
ENTERED
March 11, 2026
Nathan Ochsner, Clerk
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pleadings, discovery papers, written motions, written notices, appearances, and
similar papers “be served on every party.” Fed. R. Civ. P. 5(a)(1). A party is relieved
of the requirement to serve these papers on every party only after the entry of
default. See Fed. R. Civ. P. 5(a)(2). That means that until the court has entered
default, all motions, notices, and requests must be served on all parties.
Unless and until a party appears through counsel or consents to service via
alternate means, the only proper methods for serving a party with a known address
who has not yet appeared through counsel and who is not a registered user of the
court’s electronic-system (which describes each defendant in this case) are by
“handing it to the person,” “leaving it” at the person’s office or usual place of abode,
or “mailing it to the person’s last known address.” Fed. R. Civ. P. 5(b)(2)(A)–(C).
Despite these clear rules, the only document that PNC purports to have
served on any party was its Notice of Appearance of Counsel. See Dkt. 5. In that
document, PNC’s counsel, Jeffrey Leaverton, offers one of the most confusing
certificates of service this court has ever encountered:
The undersigned converted the foregoing document into an
electronic image, via portable document format (.pdf), electronically
submitted same to the Internet web portal for the Clerk of this Court
utilizing 	the 	Electronic 	Management 	and 	Electronic 	Case 	Filing
system of the Court, which has caused service, via Simple Mail
Transfer Protocol (e-mail), of a Notice of Electronic Filing of this
imaged document to the below-identified parties on Thursday, May
22, 2025; said e-mail provides an attributable hyperlink to the
document, in portable document format, except for Debtor(s), and
any other entity so identified below or on the EM/ECF filing sheet,
whereas in that instance such document was mailed via First Class
United States Mail, to-wit:
Castlewall Enterprise LLC
Tanya V. Bell
Keith Bell
Debtors
Id. at 2. The first 100 words of PNC’s certificate of service are superfluous. If the
court is reading PNC’s certificate of service correctly, PNC is stating that its notice
of appearance was mailed to each defendant via First Class United States mail. Yet,
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Mr. Leaverton does not state that he or anyone at his firm actually mailed the
notice to Defendants. It is possible to read the certificate of service as suggesting
that a mailing was generated simply because Mr. Leaverton filed his notice with
the court’s electronic-filing system. But the court does not mail parties’ filings to
litigants who are not registered with the court’s electronic-filing system—that is
the responsibility of the litigant filing the document. Because the certificate of
service is not written in the affirmative, the court cannot be certain that anyone
mailed the notice to Defendants.
But the certificate of service for Mr. Leaverton’s notice of appearance is
neither here nor there, because Mr. Leaverton did not include a certificate of
service for any of his subsequent filings as required by Federal Rule of Civil
Procedure 5(d)(1)(B)(i), Local Rule 5.3, and Galveston Division Rule of Practice
6(d). See Dkts. 11, 12, 27, 29 (all missing a certificate of service).
Because there is no indication in the record that any defendant has been
served with any filing in this case after the initial service of summons—including
and especially PNC’s motion for entry of default—default should not have been
entered against any defendant. Accordingly, the Clerk’s Entry of Default (Dkt. 32)
is withdrawn. 1
PNC may apply for a default judgment only after default has been properly
entered. See N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). Because
no defendant is yet in default, PNC’s motion for default judgment (Dkt. 33) is
denied without prejudice as moot. 2
1 “When a pretrial matter not dispositive of a party’s claim or defense is referred to a
magistrate judge to hear and decide, the magistrate judge must promptly conduct the
required proceedings and, when appropriate, issue a written order stating the decision.”
Fed. R. Civ. P. 72(a). Setting aside an entry of default is a non-dispositive matter because
doing so does not dispose of a party’s claim or defense. See Carey v. Hannah, Kendrix,
Zachary & Assocs., No. 1:11-cv-1782, 2011 WL 13322458, at *1 n.1 (N.D. Ga. Sept. 2,
2011); Jou v. Adalian, No. 09-226, 2009 WL 4798204, *1 (D. Hawaii, Dec. 3, 2009).
2 Denying PNC’s motion for default judgment without prejudice does not dispose of any
party’s claim or defense. Accordingly, I may rule by order rather than making a
recommendation. See Field v. Exponential Wealth Inc., No. 21 Civ. 1990, 2023 WL
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PNC must properly serve Defendants with every document that PNC has
filed 	in 	this 	case. 	No 	further 	action 	will 	be 	taken 	in 	this 	case 	until 	PNC
demonstrates to this court that it has served all its filings in this case on
Defendants.
SIGNED this ___ day of March 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
2263120, at *7 (S.D.N.Y. Feb. 27, 2023) (denial of motion for default judgment without
prejudice is within magistrate judge’s authority to order, rather than recommend); Griffin
v. Philips, No. 4:22-cv-268, 2023 WL 129416, at *2 (S.D. Ga. Jan. 9, 2023) (same).
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