Rodriguez v. 3CS2 LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LILLYANA RODRIGUEZ,
on behalf of herself and
all others similarly situated,
Plaintiffs,
v.
3CS2 LLC d/b/a THE BACK
PORCH and KEN STRICKLER,
Defendants.
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Case No. 3:25-cv-00693-B-BT
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
At the conclusion of the January 6, 2026, hearing on Plaintiff Lillyana
Rodriguez’s (1) Motion to Compel Written Discovery Responses (ECF No. 19), (2)
Motion to Compel Deposition and for Sanctions Due to Deponent’s Failure to
Appear (ECF No. 22), and (3) Motion to Extend Scheduling Order Deadlines (ECF
No. 24) (collectively, the “Motions”), Plaintiff’s counsel requested that the Court
strike Defendants 3CS2 LLC d/b/a The Back Porch and Ken Strickler’s Answer as
a sanction for their failure to participate in this case. For the following reasons, the
Court 	should 	GRANT 	Plaintiff’s 	request 	and 	direct 	the 	Clerk 	to 	STRIKE
Defendants 3CS2 LLC d/b/a The Back Porch and Ken Strickler’s Answer (ECF No.
14) and ENTER default against both Defendants.
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Background
Plaintiff Lillyana Rodriguez, a server, filed this class action under the Fair
Labor Standards Act (FLSA) against her former employer 3CS2 LLC d/b/a The
Back Porch (The Back Porch) and former manager Ken Strickler (collectively, the
“Defendants”). Plaintiff alleges that Defendants “improperly kept tips earned by
Plaintiff and the putative collective action members and shared those tips with
non-tipped employees,” “failed to provide . . . the required FLSA notice prior to
using a tip credit payment system,” and “failed to pay . . . at least the FLSA
minimum hourly wage rate[.]” Am. Compl. at 2–3, ¶¶ 4–13 (ECF No. 11).
Defendants initially appeared in this action through counsel and filed an
Answer to Plaintiff’s Amended Complaint on July 24, 2025. See generally Answer
(ECF No. 14). However, Defendants’ counsel moved to withdraw from this mater,
citing 	Defendants’ 	failure 	to 	substantially 	fulfill 	“an 	obligation 	to 	the
Firm . . . including an obligation to pay the Firm’s fee as agreed.” Unopposed Sec.
Mot. to Withdraw at 1, ¶ 2 (ECF No. 17). The Motion to Withdraw also mentions
Defendants’ 	unresponsiveness 	as 	a justification 	for withdrawal, 	stating 	that
“Defendants have not been responsive to [their attorneys] regarding strategy and
pending matters in this case.” Id. at 2–3, ¶¶ 4–5, 8. In fact, Defendants’ former
counsel was “unable to obtain Defendants’ signatures . . . because Defendants were
not responsive[.]” Id. at 3, ¶ 10.
Pursuant to Northern District of Texas Local Civil Rule 83.12(a), the Motion
to Withdraw sets forth the name, address, and telephone number of Defendants as
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counsel did not know the succeeding attorney. Id. at 3, ¶ 9. The District Judge
granted the Motion to Withdraw. See generally Order (ECF No. 18). And in the
same Order, the District Judge informed The Back Porch that, as an entity, it
cannot proceed pro se and ordered The Back Porch to “appoint new counsel by or
before December 12, 2025, or show cause, in writing, why it has failed to find new
representation.” Id. at 1. To date, The Back Porch has neither obtained new counsel
nor shown cause for its failure to do so. Although the Court has attempted to
communicate with Defendants, all mail to Defendants has been returned as
undeliverable. See Mail Returned (ECF Nos. 26, 27, 28, 29, 30, 32, & 33).
After the District Judge granted the Motion to Withdraw, Plaintiff moved to
compel responses to her written discovery requests and a Rule 30(b)(6) deposition
after 	Defendants 	failed 	to 	supplement 	their 	deficient 	discovery 	responses,
designate a corporate representative, and appear at the scheduled deposition. See
generally Pl.’s Mot. to Compel Written Disc. (ECF No. 19); Pl.’s Mot. to Compel
Depo. (ECF No. 22). Defendants did not respond to the Motions, even after they
were ordered to do so by the Court. See Order Setting Hearing (ECF No. 31) (“The
Court ORDERS Defendants to file a written response to Plaintiff’s Motions on or
before December 22, 2025.”) (emphasis in original). The undersigned set the
Motions for hearing on January 6, 2026, at 1:30 PM. Id. Despite Plaintiff’s
considerable efforts to serve Defendants with the Court’s Order Setting Hearing,
Defendants did not appear. See Pl.’s Status Report Re Service (ECF No. 34)
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(detailing efforts to serve the Court’s Order Setting Hearing on Defendants,
including email, shipment to numerous addresses, and personal service).
Legal Standards and Analysis
After review of the record, and as stated at the conclusion of the hearing on
January 	6, 	2026, 	the 	Court 	recommends 	striking 	Defendants’ 	Answer 	and
directing the Clerk to enter a default against both Defendants.
Strickler’s Discovery Violations
Federal Rule of Civil Procedure 37 allows a district court to impose a variety
of sanctions for not obeying discovery orders, including striking pleadings in whole
or in part and rendering a default judgment. Fed. R. Civ. P. 37(b)(2)(A)(iii), (vi).
The purpose of these sanctions is to ensure the effectiveness of the discovery
process. Diaz v. S. Drilling Corp., 427 F.2d 1118, 1126 (5th Cir. 1970). “A district
court has ‘broad discretion in all discovery matters’, and ‘such discretion will not
be disturbed ordinarily unless there are unusual circumstances showing a clear
abuse.’” Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 855 (5th Cir. 2000)
(quoting Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir. 1982)). This broad
discretion extends to the imposition of discovery sanctions. See Moore v. CITGO
Ref. & Chemicals Co., L.P., 735 F.3d 309, 315–16 (5th Cir. 2013).
For a court to impose “litigation-ending sanctions” under Rule 37, the Fifth
Circuit directs courts to make four findings:
(1) the discovery violation was committed willfully or in bad faith; (2)
the client, rather than counsel, is responsible for the violation; (3) the
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violation substantially prejudiced the opposing party; and (4) a lesser
sanction would not substantially achieve the desired deterrent effect.
Calsep A/S v. Dabral, 84 F.4th 304, 311 (5th Cir. 2023) (cleaned up); see also
Fazeli v. Saleh, 2018 4539093, at *2 (N.D. Tex. Sept. 21, 2018) (Boyle, J.) (“A
default judgment or dismissal under Rule 37(b) requires a clear record of delay or
contumacious conduct.”) (cleaned up). When these factors are met, “the court may
enter default judgment against the defendant under Rule 55.” Fazeli, 2018 WL
4539093, at *2. Although considered a “draconian” remedy of “last resort,” courts
may enter default to “deter litigants from flouting discovery orders in the future.”
U.S. For Use of M-CO Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th
Cir. 1987).
Here, the record presents clear evidence of Strickler’s willful refusal to
comply with Court orders and participate in the discovery process. Since his
counsel withdrew, Strickler has failed to respond to Plaintiff’s Motion to Compel
Written Discovery and failed to appear at the January 6 hearing in direct
contravention of the Court’s order. See Order Setting Hearing (ECF No. 31); Sprint
Sols., Inc. v. Taylor, 2015 WL 4100059, at *2 (N.D. Tex. July 6, 2010) (Lynn, J.)
(stating that party’s failure to appear at status conference without reason “justifies
the imposition of harsh sanctions”). Strickler also allegedly “told [the restaurant
manager at his workplace] to attempt to refuse service” of the Court’s Order Setting
Hearing. See Pl.’s Status Report Re Service at 4, ¶ 3(a) (ECF No. 34); Henderson
v. Fenwick Prot. Inc., 2015 WL 5165134, at *5 (N.D. Tex. Sept. 2, 2015) (Lynn, J.)
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(considering efforts to locate defendant, failure to answer discovery requests, and
apparent evasion of service when striking defendant’s answer).
Further, the Motion to Withdraw filed by Strickler’s attorney makes it clear
that Strickler himself is responsible for his unresponsiveness. Indeed, Strickler’s
counsel recounts 17 instances in which Defendants failed to respond to counsel’s
communications regarding discovery, and counsel was even unable to obtain
Strickler’s signature on the Motion to Withdraw because he was not responsive.
Sec. Mot. to Withdraw at 2–3, ¶¶ 4(a)–(k), 10 (ECF No. 17); Henderson, 2015 WL
5165134, at *5 (noting that unresponsive party’s counsel sought to withdraw due
to client’s failure to communicate).
Furthermore, severe sanctions are appropriate here because “[Strickler]
ha[s] provided neither an acceptable reason for [his] non-compliance, nor an
indication that [he] will respect Court orders in the future.” OrganiCure Bio-Tec
Co., Ltd. v. Asialink Enter. Group Corp., 2012 WL 13027061, at *3 (N.D. Tex. June
7, 2012) (Godbey, J.) (quoting Arrendondo v. Flores, 2008 WL 4414308, at *10
(S.D. Tex. 2008)); see also Calsep A/S, 84 F.4th at 316 (“Courts have not required
deep consideration of alternatives when it’s plain that a lesser sanction wouldn’t
have done the trick.”).
The Court finds that Strickler’s failure to follow the Court’s orders and
participate in discovery is willful, he appears to be unbothered by the threat of
sanctions, and Strickler himself is responsible for his unresponsiveness rather than
his previous counsel. Furthermore, no lesser sanction would ameliorate the
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prejudice to Plaintiff who has been entirely unable to prosecute her lawsuit in the
face of Strickler’s refusal to cooperate in discovery. The Court warned Strickler that
failure to comply with the Court’s orders “may result in the imposition of sanctions,
including striking Defendants’ answer and permitting Plaintiff to seek a default
judgment against Defendants.” Order Setting Hearing at 2 (ECF No. 31); see also
Vikas WSP, Ltd. v. Econ. Mus Prods. Co., 23 F.4th 442, 455–56 (5th Cir. 2022)
(indicating that the court should warn litigant of potential severe sanction).
Accordingly, the appropriate sanction for Strickler’s discovery violations is an
order striking Strickler’s Answer and directing the entry of default.
The Back Porch’s Failure to Retain Counsel
In federal court, a corporation is not permitted to proceed pro se. Donovan
v. Rd. Rangers Country Junction, Inc., 736 F.2d 1004, 1005 (5th Cir. 1984) (per
curiam) (“The ‘clear’ rule is ‘that a corporation as a fictional legal person can only
be represented by licensed counsel.’”) (quoting K.M.A., Inc. v. Gen. Motors
Acceptance Corp., 652 F.2d 398, 399 (5th Cir. 1982)). “The rationale for this long-
standing rule applies equally to ‘all artificial entities,’ such as partnerships and
associations.” Doe v. Compact Info. Sys., Inc., 2017 WL 3394584, at *2 (N.D. Tex.
July 14, 2017) (Ramirez, J.) (quoting Rowland v. Cal. Men’s Colony, 506 U.S. 194,
202 (1993)), adopted by, 2017 WL 3405522 (N.D. Tex. Aug. 7, 2017) (Lynn, J.).
“As a cross between a corporation and a partnership, a limited liability company is
also an artificial entity that may only appear in federal court through licensed
counsel.” Id. (collecting cases).
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“[T]he appropriate measure for a judge to take when confronted with an
unrepresented corporation is inherently discretionary.” Memon v. Allied Domecq
QSR, 385 F.3d 871, 873 (5th Cir. 2004). “The [court] might, inter alia, admonish
the corporation that it cannot proceed without counsel, order the corporation to
retain counsel within a certain period of time (the appropriate amount of time also
being within the judge’s discretion), or dismiss the case[.]” Id. at 873, n.5. When a
corporation declines to hire counsel to represent it, the court may properly dismiss
its claims, if it is a plaintiff, or strike its defenses, if it is a defendant. See Donovan,
736 F.2d at 1005 (holding that district court properly struck defenses of corporate
defendant that refused to hire counsel). Some “courts have found default judgment
to be the appropriate remedy when a corporation fails, after court warning, to
appoint counsel.” Adonai Commc’ns, Ltd. v. Awstin Invs., L.L.C., 2012 WL 899271,
at *1–2 (N.D. Tex. Mar. 16, 2012) (Lindsay, J.) (citing PalWeb Corp. v. Vimonta
AG, 2003 WL 21992488, at *1 (N.D. Tex. Aug. 19, 2003) (Solis, J.) and Mount
Vernon Fire Ins. Co. v. Obodoechina, 2009 WL 424326, at *1 (S.D. Tex. Feb. 19,
2009)).
Plaintiff is entitled to an order striking The Back Porch’s Answer and
directing the entry of default because it has failed to retain counsel after multiple
warnings that it must do so. As an LLC, The Back Porch must be represented by
counsel in this lawsuit. The Court informed Defendants of this fact in two orders.
See Order (ECF No. 18) (“[The Back Porch] cannot proceed pro se.”); Order Setting
Hearing at 2, n.2 (ECF No. 31) (reminding The Back Porch of its obligation to
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appoint new counsel). And the Court specifically warned The Back Porch that
“[f]ailure to comply . . . may result in the imposition of sanctions, including
striking Defendants’ answer and permitting Plaintiff to seek a default judgment
against Defendants.” Order at 2 (ECF No. 31). However, The Back Porch has yet to
retain counsel or participate in this lawsuit since the withdrawal of counsel.
Because The Back Porch has failed to obtain counsel—even though it cannot
proceed in this lawsuit without counsel and despite the Court’s warnings—the
Court should strike The Back Porch’s Answer and direct the entry of default.
Attorney’s Fees and Costs
Rule 37 provides that in addition to sanctions under Rule 37(b)(2)(A)(i)–
(vi), the court must order the disobedient party “to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was substantially
justified or other circumstances make an award of expenses unjust.” Fed. R. Civ.
P. 37(d)(3). “The United States Supreme Court has defined ‘substantially justified’
to mean justified in substance or in the main—that is, justified to a degree that
could satisfy a reasonable person. ‘Substantial justification’ entails a reasonable
basis in both law and fact, such that there is a genuine dispute or if reasonable
people could differ as to the appropriateness of the contested action.” Heller v. City
of Dallas, 303 F.R.D. 466, 477 (N.D. Tex. 2014) (cleaned up).
The Court finds that Defendants’ unresponsiveness and failure to cooperate
in the discovery process is not substantially justified. Further, the Court finds that
no other circumstances make an award of expenses unjust. Defendants have not
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proffered any reason for their failure to participate in the discovery process, and
therefore 	Plaintiff 	is 	entitled 	to 	attorney’s 	fees 	and 	costs 	associated 	with
Defendants’ discovery failures. Schiff v. Ward, 2022 WL 18587806, at *3 (N.D.
Tex. Dec. 19, 2022) (Rutherford, J.) (awarding attorney’s fees associated with
discovery failures), adopted by 2023 WL 1787162 (N.D. Tex. Feb. 6, 2023) (Lynn,
J.). 	Accordingly, 	the 	Court 	should 	also 	order 	Defendants 	to 	pay 	Plaintiff’s
reasonable 	attorney’s 	fees 	and 	costs 	associated 	with 	Defendants’ 	discovery
failures.1
Recommendation
Defendants have failed to comply with Court orders and participate in this
case since the District Judge allowed their counsel to withdraw. Therefore, the
Court should GRANT Plaintiff’s request and DIRECT the Clerk to STRIKE
Defendants 3CS2 LLC d/b/a The Back Porch and Ken Strickler’s Answer (ECF No.
14) and ENTER default against both Defendants. The Court should also GRANT
Plaintiff leave to seek an award of attorney’s fees and costs.
1 To recover attorney’s fees and costs, Plaintiff’s counsel must file an application
establishing the amount of the reasonable attorney’s fees and costs to be awarded.
The fee application must be supported by documentation evidencing the “lodestar”
calculation, including affidavits and detailed billing records, and citations to
relevant authorities and must set forth the itemized number of hours expended in
connection with the recoverable attorney’s fees described above as well as the
reasonable rate(s) requested. See generally Tollett v. City of Kemah, 285 F.3d 357,
367 (5th Cir. 2002). The application may also include a request for recovery of the
fees incurred in preparing and filing the fee application itself.
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SO RECOMMENDED.
January 12, 2026.
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in
the manner provided by law. Any party who objects to any part of this report 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). 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 report 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
judge, except upon grounds of plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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