Cassandra Whitaker as Putative Representative of the Estate of Nashyra Whitaker v. Farmer et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
Cassandra Whitaker, 	§
as Putative Representative of 	§
the Estate of Nashyra Whitaker, 	§
Plaintiff, 	§
§
v. 	§ 	Civil Action M-23-339
§
Bianca Farmer, et al., 	§
Defendants. 	§
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 4. Pending before
the 	court 	is 	Plaintiff’s 	Second 	Amended 	[Motion 	for] 	Default
Judgment Against Adriana Trevino, All Square Inc., Issac V.
Garcia, and IZK LLC. ECF No. 76. None of the Defendants that
are the subject of the instant motion filed a response. The court
recommends that the motion be GRANTED.
1. Background
This case arises from an automobile accident resulting in the
death of Nashyra Whitaker (Nashyra). Plaintiff’s Second Amended
Petition (SAP), ECF No. 1-18 at 5. Plaintiff Cassandra Whitaker
(Cassandra), Nashyra’s mother, alleges that on September 5, 2021,
Nashyra and Defendant Bianca Farmer, both employees of the
United States Army, visited the Gallery Social Lounge where
Farmer drank alcohol to excess. Id. Nashyra and Farmer left the
bar in a vehicle at about 2:00 a.m. Id. Farmer was driving, with
Nashyra as the passenger. Id. Farmer lost control of the vehicle
and collided with two light poles. Id. at 5–6. Nashyra died from the
collision. Id.
United States District Court
Southern District of Texas
ENTERED
February 03, 2026
Nathan Ochsner, Clerk
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Cassandra sued several entities, many of which have settled
or have been dismissed for various reasons. Four Defendants
remain in the case, all of which are the subject of the instant
motion for default judgment. All Square, Inc. is also known as the
Gallery Social Lounge, the business where Farmer consumed the
alcohol before the crash. SAP at 2–3. All Square served alcohol to
Farmer under Liquor License No. MB1042988. Adriana Trevino
and Issac V. Garcia are owners of the Gallery Social Lounge. Id.
at 5. Trevino was the holder of the liquor license, which was issued
in the name of “The Gallery.” Id. Trevino and Garcia also had an
ownership interest in other businesses, including IZK, LLC, that
were parent or sister companies of the Gallery Social Lounge. Id.
The SAP alleges that all four remaining defendants are liable to
Plaintiff for damages under the Texas Dram Shop Act, Tex. Alc.
Bev. Code § 2.02.
Cassandra 	alleges 	that 	Defendants 	“not 	only 	provided
alcoholic beverages to Defendant Bianca Farmer and Plaintiff
Nashyra Whitaker, but continued to do so even after Defendant
Bianca Farmer was clearly intoxicated enough to endanger herself
and those around her.” SAP at 9. Cassandra further alleges that
Defendant’s service of alcohol to Farmer caused the accident and
thus the injury and death of Nashyra. Id. at 9–10.
On December 17, 2025, the court held a hearing on the
motion 	for 	default 	judgment. 	ECF 	No. 	82. 	The 	court 	heard
Cassandra’s testimony as to damages, including Nashyra’s pain
and suffering and mental anguish, her lost opportunity to earn a
living, and funeral expenses. Cassandra also testified about her
loss of Nashyra’s companionship, and Cassandra’s own mental
anguish. She testified about 	having 	a close relationship with
Nashyra, about Nashyra’s future plans, and about the damage
resulting 	from 	Nashyra’s 	death. 	The 	court 	fully 	credits
Cassandra’s 	testimony. 	The 	court 	also 	accepted 	into 	evidence
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numerous exhibits, listed in the court’s December 17, 2025 Minute
Entry Order. ECF No. 82.
2. Legal Standard and Analysis
Judgment by default is a drastic remedy that is disfavored
by the courts. Charlton L. Davis & Co. v. Fedder Data Ctr., Inc.,
556 F.2d 308, 309 (5th Cir. 1977); see also Lindsey v. Prive Corp.,
161 F.3d 886, 893 (5th Cir. 1998). When considering a motion for
default judgment “against a party who has failed to plead or
otherwise defend, the district court has an affirmative duty to look
into its jurisdiction both over the subject matter and the parties.”
Sys. Pipe & Supply, Inc. v. M/V VIKTOR KURNATOVSKIY, 242
F.3d 322, 324 (5th Cir. 2001).
The court has subject matter jurisdiction over this case. The
case was initially removed to federal court by the United States
under 28 U.S.C. § 1346(b)(1). ECF No. 1 at 1. After the United
States was dismissed from the case, the court ordered briefing to
ensure that the court continued to have subject matter jurisdiction
absent the United States as a defendant. ECF No. 23. The parties
filed 	briefs 	and 	declarations 	establishing 	that 	the 	court 	has
jurisdiction. ECF Nos. 26, 27, 37.
Additionally, the court has personal jurisdiction over the
Defendants. All Defendants are Texas citizens and the causes of
action alleged in this case are based on conduct that occurred in
Texas. No Defendant has contested the court’s exercise of personal
jurisdiction.
Once the court is satisfied it has jurisdiction over the subject
matter and the parties, the court must determine: (1) if a default
judgment 	is 	procedurally 	appropriate; 	(2) 	if 	the 	plaintiff 	has
presented a colorable claim; and (3) how to calculate damages or
equitable relief. Vela v. M&G USA Corp., No. 17-13, 2020 WL
421188, at *1 (S.D. Tex. Jan. 27, 2020).
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A. Default Judgment is Procedurally Appropriate
To determine whether a motion for default judgment is
procedurally appropriate, the court must consider relevant factors,
including:
whether material issues of fact are at issue, whether
there 	has 	been 	substantial 	prejudice, 	whether 	the
grounds for default are clearly established, whether
the default was caused by a good faith mistake or
excusable 	neglect, 	the 	harshness 	of 	a 	default
judgment, and whether the court would think itself
obliged to set aside the default on the defendant’s
motion.
Lindsey, 161 F.3d at 893.
Here, the grounds for default are clearly established. The
court authorized alternate service of process on all Defendants and
Plaintiff 	has 	shown 	proof 	of 	service 	on 	all 	Defendants. 	ECF
Nos. 29, 30, 31, 32, 44, 45 46, 47, 48. None of the Defendants have
answered or defended this action. No Defendant has taken any
action in this case. Accordingly, the Clerk of Court has already
entered default against all Defendants. ECF No. 56. No Defendant
has moved to vacate the entry of Default. The instant motion for
default judgment was served by mail to all Defendants. ECF
No. 76 at 8.
There is no evidence that there is an issue of material fact.
There is no evidence that the Defendants’ default was caused by
good faith mistake or excusable neglect. And there is no evidence
that entering a default judgment would substantially prejudice
Defendants. Denial of the instant motion, on the other hand, would
deprive 	Cassandra 	of 	her 	ability 	to 	recover 	damages 	against
Defendants. She has diligently pursued this cause of action.
Though Defendants were properly served in accordance with
the court’s order for alternative service, they appear to have
ignored 	this 	lawsuit 	entirely. 	In 	these 	circumstances, 	default
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judgment is not unduly harsh. The court sees no reason that it
would later be obliged to set aside the default.
All six Lindsey factors weigh in favor of finding that default
judgment is procedurally appropriate. Accordingly, the court turns
to the question of whether Cassandra has presented a colorable
claim.
B. Plaintiff has Stated a Colorable Claim
An entry of default judgment “must be supported by well-
pleaded 	allegations 	and 	must 	have 	a 	sufficient 	basis 	in 	the
pleadings.” Wooten v. McDonald Transit Assocs., Inc., 788 F.3d
490, 	498 	(5th Cir. 	2015) 	(internal 	quotations 	omitted). 	Well-
pleaded 	factual 	allegations 	are 	assumed 	to 	be 	true, 	except
regarding 	damages. 	United 	States 	v. 	Shipco 	Gen., 	Inc., 	814
F.2d 1011, 1014 (5th Cir. 1987).
A cause of action under the Texas Dram Shop Act requires a
plaintiff to prove that defendant provided an alcoholic beverage,
that at the time the provision occurred it was apparent to the
provider that the person being served was obviously intoxicated to
the extent that he presented a clear danger to himself and others,
and that the intoxication of the recipient was a proximate cause of
the damages suffered. Tex. Alc. Bev. Code § 2.02. As discussed
above, 	Cassandra’s 	well-pleaded 	factual 	allegations 	present 	a
colorable claim for damages under the Dram Shop Act.
C. Calculation of Damages
After the court determines that default judgment is both
procedurally 	appropriate 	and 	that 	plaintiff 	has 	presented 	a
colorable claim, the court must determine whether plaintiff is
entitled to damages in the form of compensation or equitable relief.
Vela, 2020 WL 421188, at *1. The court notes that it is appropriate
for a magistrate judge to hold a hearing to determine the amount
of damages in the context of a motion for default judgment. The
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district judge must then review the magistrate judge’s findings de
novo and enter the final judgment. See Callier v. Gray, 167 F.3d
977, 981–83 (6th Cir. 1999) (construing 28 U.S.C. § 636(b)(3) to
permit referral of damages determinations in default-judgment
situations as a matter “bearing a particular relationship to the
other § 636 specified duties of the magistrate judge”); see also
Conetta v. Nat’l Hair Care Ctrs., Inc., 236 F.3d 67, 73 (1st Cir.
2001) 	(agreeing 	with 	Collier 	that 	an 	MJ 	can 	prepare 	“a
recommended decision as to the amount of damages” for the
district judge to adopt or reject).
Cassandra 	brings 	a 	survival 	cause 	of 	action 	as 	the
representative of Nashyra’s estate under Tex. Civ. Prac. & Rem.
Code § 71.021. Under the statute, the suit may be brought by the
representative and prosecuted on behalf of the decedent for all
damages suffered by the decedent before her death. Russell v.
Ingersoll-Rand Co., 841 S.W.2d 343, 347 (Tex. 1992). Cassandra
also brings a wrongful death cause of action under Tex. Civ. Prac.
& Rem. Code § 71.004.
Plaintiff seeks recovery of these categories of damages:
• 	$200,000.00 	for 	past 	pain, 	suffering, 	and 	mental
anguish
Plaintiff presented evidence that Nashyra suffered grievous
injuries in the accident. She was alive for hours between the
accident 	and 	her 	passing. 	The 	court 	concludes 	that 	the
catastrophic nature of the injuries resulted in extreme pain, fear,
anguish, 	discomfort, 	and 	suffering. 	The 	amount 	sought 	is
conservative and should be awarded.
• 	$365,579.92 for future economic loss.
Plaintiff 	has 	presented 	evidence 	that 	Nashyra’s 	death
caused her to lose her future earning capacity. At the time of her
death, Nashyra was earning $3,340.83 per month in the National
Guard. She had approximately two years left on her contract. Her
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lost wages from the government are $80,179.92. Plaintiff was also
entitled to use her military benefits for pay for esthetician school,
which 	would 	have 	been 	worth 	approximately 	$15,000. 	After
receiving her education, she would have worked for at least ten
years making at least $27,040.00 per year.
Cassandra 	is 	entitled 	to 	at 	least 	$365,579.92 	in 	future
economic loss. Again, this is a conservative estimate.
• 	Past 	and 	Future 	Mental 	Anguish 	and 	Loss 	of
Companionship
Cassandra testified at length about her past and future
mental anguish. It is clear that Cassandra and Nashyra were very
close. They spoke daily and expected to remain close for the rest of
Nashyra’s life. The sudden and painful manner of Nashyra’s death
had a clear and devastating impact on Cassandra. Plaintiff seeks
$525,000.00 for past mental anguish and loss of companionship
and 	$525,000.00 	for 	future 	mental 	anguish 	and 	loss 	of
companionship. Based on the court’s evaluation of all the evidence
in this case, these requests are reasonable and warranted.
• 	Funeral Expenses
Plaintiff also proved that she paid $4,276.89 for funeral
expenses she incurred, which should be awarded.
3. Conclusion
For 	the 	foregoing 	reasons, 	the 	court 	recommends 	that
Plaintiff’s 	Second 	Amended 	Motion 	for 	Default 	Judgment 	be
GRANTED. 	Plaintiff 	should 	be 	awarded 	$1,619,856.70 	in
damages.
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The 	parties 	have 	fourteen 	days 	from 	service 	of 	this
Memorandum 	and 	Recommendation 	to file 	written 	objections.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Failure to timely file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474 U.S.
140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–77 (5th
Cir. 1988).
Signed at Houston, Texas on February 3, 2026.
___________________________________
Peter Bray
United States Magistrate Judge
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