Ellis v. Wellman et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ERIC ELLIS, 	§
Plaintiff, 	§
§
v. 	§ 	No. 3:25-CV-867-N-BW
§
CITY OF DALLAS, et al., 	§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff Eric Ellis’s Motion to Vacate or
Reconsider the Court’s Order Accepting the Magistrate Judge’s Findings,
Conclusions, and Recommendation (“FCR”) pursuant to Federal Rules of Civil
Procedure 54(b), 59(e), and 60(b). (See Dkt. No. 39 (“Motion) (“Mot.”).) The case
was automatically referred to the undersigned magistrate judge for case management
pursuant to Special Order 3-251. (See Dkt. No. 3.)
Based on a review of the motion, arguments, and relevant law, the
undersigned RECOMMENDS that the Motion (Dkt. No. 39) be DENIED.
I. BACKGROUND
On November 12, 2025, the undersigned entered an FCR recommending that
Ellis’s Motion for Default Judgment (Dkt. No. 26) be denied, and the City’s Motion
to Dismiss (Dkt. No. 21) be denied in part and granted in part. (See Dkt. No. 35.)
Pursuant to Fed. R. Civ. P. 72(b) and 28 U.S.C. § 636(b)(1), Ellis filed objections on
November 13, 2025. (Dkt. No. 36.) Senior United States District Judge David C.
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Godbey reviewed de novo those portions of the FCR to which objection was made,
reviewed the remainder for plain error, and finding no error, entered an Order
Accepting the FCR on November 14, 2025, thereby denying Ellis’s Motion for
Default Judgment (Dkt. No. 26) and denying the City’s Motion to Dismiss (Dkt. No.
21), except that the City was granted permission to file a motion under Fed. R. Civ.
P. 12 within 21 days of the Order. (See Dkt. No. 37 (the “Order”).) On November
14, 2025, Ellis simultaneously filed supplemental objections (Dkt. No. 38) and the
present motion to reconsider (Dkt. No. 39).
II. LEGAL STANDARD
A request that the Court reconsider an interlocutory order, such as the Order
at issue here, is governed by rule 54(b) of the Federal Rules of Civil Procedure.
Highland Cap. Mgmt., L.P. v. Highland Cap. Mgmt. Servs., Inc., No. 3:21-CV-1378-N,
2021 WL 7540296, at *1 (N.D. Tex. Dec. 7, 2021); see Fed. R. Civ. P. 54(b). “[T]he
power to reconsider or modify interlocutory rulings is committed to the discretion of
the district court.” Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017)
(reversing application of Rule 59 standards) (internal quotations and citations
omitted). Rule 54(b) allows “the district court to revise at any time any order or
other decision that does not end the action.” Id. “Under Rule 54(b), the trial court is
free to reconsider and reverse its decision for any reason it deems sufficient[.]” Id.
(internal quotations and citations omitted).
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Motions for reconsideration have a narrow purpose and are only appropriate
to allow a party to correct manifest errors of law or fact or to present newly
discovered evidence. Texas Instruments, Inc. v. Hyundai Elec. Indus., Co., 50 F. Supp.
2d 619, 621 (E.D. Tex. 1999) (citations omitted); cf. California v. Summer Del Caribe,
Inc., 821 F. Supp. 574, 577 (N.D. Cal. 1993) (finding that reconsideration of an
interlocutory order may be justified “on the basis of an intervening change in the
law, or the need to correct a clear error or prevent manifest injustice”).
A party seeking reconsideration must “set forth concisely the matters or
controlling decision which counsel believes a court has overlooked.” Bennett v.
Verizon Wireless, No. 04-CV-6314 CJS, 2008 WL 216073, at *1 (W.D.N.Y. Jan. 24,
2008); Grupo Televisa, S.A. v. Telemundo Commc'ns Group, Inc., No. 04-20073-CIV,
2007 WL 4699017, at *1 (S.D. Fla. Oct. 12, 2007) (“The moving party ‘must set
forth facts or law of a strongly convincing nature to induce the court to reverse its
prior decision.’”); Petrenko-Gunter v. Upchurch, No. Civ. A. 304CV2691D, 2005 WL
2036668, at *2 (N.D. Tex. Aug. 11, 2005) (“A ruling should only be reconsidered
where the moving party presents substantial reasons for requesting
reconsideration.”).
III. DISCUSSION
After the FCR (Dkt. 35) was entered on November 12, 2025, Ellis filed
objections on November 13, 2025 (Dkt. No. 36), and the Court entered its Order
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accepting the FCR (Dkt. No. 37) on November 14, 2025, after which Ellis filed
“supplemental” objections (Dkt. No. 38). Ellis argues that “the Order was entered
prematurely under Rule 72(b)(2), contains procedural errors, and relies on an
internally inconsistent FCR.” (Mot. at ECF p. 1.)
Ellis first objects that the early adoption of the FCR was procedurally
improper because “it foreclosed (1) Defendants’ opportunity to file objections;
(2) Plaintiff’s right to supplement, refine, or expand his own objections within the 14-
day period; and (3) Plaintiff’s right to respond to any objections filed by
Defendants.” (Mot. at ECF p. 2.) Ellis is wrong. Although a party is permitted to
file objections to the recommendation of a magistrate judge within 14 days of its
issuance, see 28 U.S.C. § 636(b)(1), nothing allows that same objecting party to again
object to the same report and recommendation, especially after the district court
overruled the initial objections and adopted the recommendation. See Pete v. Small
Bus. Admin., No. 1:25-CV-00223-MAC-CLS, 2025 WL 2671536, at *1 (E.D. Tex.
Aug. 27, 2025), adopted, 2025 WL 2663662 (E.D. Tex. Sept. 17, 2025).
As a pro se litigant, Ellis is held to a “less stringent standard,” and his filings
are to be liberally construed, but Ellis still “must abide by the rules that govern the
federal courts.” Frazier v. State Wells Fargo Bank, N.A., 541 F. App’x 419, 421 (5th
Cir. 2013). At the trial court level, those rules permit objecting only once to the
report and recommendation of a magistrate judge. Nevertheless, the undersigned
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has reviewed Ellis’s unauthorized “supplemental” objections (Dkt. No. 38) and
determines that they merely repeat the arguments advanced in his original objections
(Dkt. No. 36) and the present motion for reconsideration (Dkt. No. 39).
To the extent that Ellis argues that the Court’s “premature” adoption of the
FCR “foreclosed” Defendants’ opportunity to timely file written objections, the
record reflects that Defendants did not object to the FCR, and there is nothing to
suggest that their opportunity to do so was foreclosed. See Kreimerman v. Casa
Veerkamp SA de CV, 22 F.3d 634, 646–47 (5th Cir. 1994) (pointing out that motions
for reconsideration protect the litigant from hasty adoption of a recommendation).
Thus, Defendants were able to file a motion for reconsideration of the Court’s Order
accepting the FCR if they believed they had been precluded from filing objections
they intended to make.
Ellis next argues that the Order is “factually inaccurate” because it
“incorrectly implie[d] that the objection process was complete” and deprived “[him]
of his procedural rights.” (Id. at ECF p. 3.) This argument fails for similar reasons.
As previously noted, Ellis filed supplemental objections after the adoption of the
FCR and also filed a motion for reconsideration. Therefore, he was not deprived of
any procedural rights. Kreimerman, 22 F.3d at 646–47. In any event, Ellis has not
shown any basis for finding the Order void. For the Order to be void based on its
alleged premature entry, “not only must the procedural deviation rise to the level of a
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‘fundamental infirmity,’ but the resulting judgment [and orders] must also be
‘affected by’ that infirmity.” Taylor v. Colvin, 616 F. App'x 685, 687 (5th Cir. 2015);
see United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010); cf. Kreimerman,
22 F.3d at 646–47 (observing that premature adoption of a report and
recommendation is usually subject to harmless error review). Ellis has made no such
showing.
Next, with respect to the City’s motion to dismiss (Dkt. No. 21), Ellis
complains that the Order adopted an “internally inconsistent” recommendation in
that the FCR recommended that the City’s motion be granted in part and denied in
part. (See Mot. at ECF p. 3.) According to Ellis, because the City’s motion to
dismiss (Dkt. No. 21) was denied, it “cannot serve as a timely responsive pleading
preventing default.” (Mot at ECF p. 3 (citing Bass v. Hoagland, 172 F.2d 205, 210
(5th Cir. 1949).) In Bass, the Fifth Circuit found that the trial court erred in entering
default judgment where the defendant had no notice of default. Id. at 209–10. Thus,
Bass is inapposite and does not support Ellis’s conclusion that the City failed to
timely plead or otherwise defend. (See generally Mot.)
Rather, the record establishes that the City has been actively involved in
defending this lawsuit. It timely filed an answer in state court on March 27, 2025
(Dkt. No. 1-9), timely removed to this Court on April 8, 2025 (Dkt. No. 1); timely
filed a Joint Status Report on September 3, 2025 (Dkt. No. 12), and timely filed a
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response to Ellis’s motion for default judgment on November 6, 2025 (Dkt. No. 31).
Furthermore, as explained in the FCR, the City timely filed a motion to dismiss,
which the Court found constitutes an appearance. See, e.g., Rogers v. Barnhart, 365 F.
Supp. 2d 803, 808 (S.D. Tex. 2004); Sun Bank of Ocala v. Pelican Homestead & Sav.
Ass’n, 874 F.2d 274, 277 (5th Cir. 1989)). And although the City did not specifically
assert any Rule 12(b) defenses in that motion, it requested leave to later brief a Rule
12(b)(6) motion if the instant motion failed (see Dkt. No. 35), which the Court, in its
discretion, ultimately granted (see Dkt. No. 37).
Relatedly, there is no error in the Court’s finding with respect to default
judgment. (See Mot.; see also Dkt. Nos. 36, 38.) There is no entitlement to default
judgment as a matter of right. See Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001).
The Fifth Circuit has set out a three-step process for a plaintiff seeking default
judgment: (1) default by the defendant; (2) entry of default by the Clerk; and (3) entry
of a default judgment by the district court. See New York Life Ins. Co. v. Brown, 84
F.3d 137, 141 (5th Cir. 1996); see also J & J Sports Prods., Inc. v. Morelia Mexican Rest.,
Inc., 126 F. Supp. 3d 809, 813 (N.D. Tex. 2015). As explained above, Ellis failed to
satisfy the first requirement—that the City failed “to plead or otherwise defend.”
Fed. R. Civ. P. 55(a); New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir.
1996). He also failed to satisfy the second requirement as the clerk declined to enter
default.
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Finally, regarding the third requirement, the Court weighed the factors
articulated in Lindsey v. Prive Corp. 161 F.3d 886, 893 (5th Cir. 1998) and found that
Ellis was not entitled to default judgment. Nothing in Ellis’s objections or the
Motion established that the “drastic remedy” of default judgment is warranted here.
See Lewis, 236 F.3d at 767 (quoting Sun Bank of Ocala, 874 F.2d at 276); see also Rogers
v. Hartford Life & Acc. Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999) (noting that the Fifth
Circuit generally disfavors default judgments and prefers that cases be resolved on
their merits). Accordingly, Ellis has failed to establish any error in the FCR (Dkt.
No. 35) or the Order (Dkt. No. 37).
IV. RECOMMENDATION
For all the foregoing reasons, the undersigned RECOMMENDS that Ellis’s
motion to vacate or reconsider the Court’s Order Accepting the FCR (Dkt. No. 39)
be DENIED.
SO RECOMMENDED on March 27, 2026.
_____________________________
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
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NOTICE OF RIGHT TO OBJECT
A copy of these findings, conclusions, and recommendation will 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 finding or recommendation to which
objection is made, state the basis for the objection, and indicate 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 court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).
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