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Appeal from the United States District Court for the Northern District of Texas.
Before SMITH, WIENER, and PRADO, Circuit Judges.
EDWARD C. PRADO,
Treating the petition for rehearing en banc as a petition for panel rehearing, see Internal Operating Procedure accompanying 5th CIR. R. 35, the petition for panel rehearing is GRANTED.
We previously issued an opinion assessing whether evidence adduced at a default-judgment " prove-up" hearing can cure a facially deficient complaint, a question this Court left open forty years ago in Nishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200 (5th Cir. 1975). See Wooten v. McDonald Transit Assocs., Inc., 775 F.3d 689 (5th Cir. 2015). Upon reconsideration, we withdraw the prior opinion in its entirety and replace it with the following.
Plaintiff-Appellee Eddie Wooten filed suit against his former employer, Defendant-Appellant McDonald Transit Associates, Inc., under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § § 621-634, alleging discrimination and retaliation. McDonald Transit never answered or defended the suit. The clerk entered default against McDonald Transit,
and, after holding a damages hearing in which Wooten provided live testimony, the district court entered default judgment for Wooten. McDonald Transit filed a motion to set aside the default judgment, which the district court denied. Although Wooten's complaint contained very few factual allegations, we conclude that it met the low threshold of content demanded by Federal Rule of Civil Procedure 8 because it provided McDonald Transit with fair notice of Wooten's claims. The complaint was therefore sufficient, both on its own and in combination with the evidence presented at the prove-up hearing, to support the default judgment. Additionally, we see no clear error in the district court's finding that McDonald Transit's default was willful, justifying the denial of relief under Rules 55(c) and 60(b). As there was no abuse of discretion in either the district court's entry of default judgment or its refusal to set aside that judgment, we affirm.
On June 22, 2012, Wooten sued McDonald Transit in federal court, alleging discrimination on the basis of his age and retaliation after he made a claim of age discrimination. In his complaint, Wooten alleged that he was a former employee of McDonald Transit, where he had worked from 1999 until May 1, 2011. At the time he was fired, he worked as a Class B Mechanic. He further alleged:
In October 2010, [Wooten] made a claim to the Equal Employment Opportunity Commission for age discrimination. After the claim was made and continuing until [his] employment ended, [McDonald Transit], in violation of the ADEA, discriminated and retaliated against [Wooten], and created a hostile work environment, until such time that Plaintiff was constructively discharged on or about May 1, 2011.
The district clerk issued a summons the same day that Wooten filed his complaint. On July 18, 2012, Wooten returned the summons with an affidavit of service indicating that service had been executed on July 5 on McDonald Transit's president and registered agent, Robert T. Babbitt, by certified mail, return receipt requested. But the return receipt indicated that process had in fact been served on Brenda Roden, another McDonald Transit officer. After McDonald Transit failed to appear, plead, or otherwise defend Wooten's suit, the district clerk entered default against McDonald Transit on October 30, 2012, and Wooten moved for a default judgment.
The district court held a hearing on the motion in December 2012, but took issue with the fact that Roden, not Babbitt, had been served. The court adjourned the hearing so that Wooten could attempt proper service on Babbitt again. The district clerk issued new summons, and Wooten returned with a new affidavit of service indicating service had been executed by personal delivery on Babbitt on January 17, 2013. Again McDonald Transit failed to appear, answer, or defend; again the district clerk entered default; and again Wooten moved for a default judgment.
The district court held a hearing on whether to enter default judgment on June 7. At that hearing, which the court expressly designated " a hearing to prove up damages for a default judgment," Wooten provided testimony that elaborated on his factual allegations. He testified that he was born in January 1956, making him fifty-four years old at the time he made his claim to the EEOC. He explained that during his tenure at McDonald Transit, he had been promoted from the position of Class B Mechanic to the position of Shop Foreman, and he had " never" been " wr[itten]
up" or " reprimanded." He also described his retaliation claim in greater detail: he was demoted from Shop Foreman, lowering his pay by $2 an hour; he was given menial work; his hours were changed; and he was denied opportunities for additional job-related certification. This treatment, he said, persisted for " about six months." The district court entered a default judgment that same day.
McDonald Transit filed a motion to set aside the default judgment on June 18. In an affidavit accompanying the motion, Babbitt averred that he was never served with process, that he had not learned of the suit naming McDonald Transit as a defendant until June 11, and that he retained counsel to challenge the default judgment soon afterward.
McDonald Transit challenged the judgment on numerous grounds under Federal Rules of Civil Procedure 55(c) and 60(b). In particular, McDonald Transit invoked Rule 60(b)(1) (mistake, inadvertence, surprise, or excusable neglect); (b)(3) (fraud, misrepresentation, or misconduct by an opposing party); (b)(4) (the judgment is void); and (b)(6) (any other reason that justifies relief). In asking the court to set aside the default judgment under Rule 60(b)(1), McDonald Transit claimed that it was not Wooten's employer; that Wooten had failed to obtain a right-to-sue letter before suing McDonald Transit; and that Wooten had failed to file suit within the required time from the issuance of a right-to-sue letter. McDonald Transit also asserted that it was not properly served and therefore had not willfully disregarded its duty to respond. In response, ...