HOUSTON – A federal judge has determined that a plaintiff who alleged excessive force was imposed upon him while he was incarcerated at the Texas Department of Criminal Justice in 2016, was prejudiced due to the delayed response of one of the named defendants in the case.
On Sept. 30, U.S. District Court for the Southern District of Texas Judge George C. Hanks Jr. ruled in favor of plaintiff Mark Hernandez and against one defendant, Manuel Poveda Jr.
“The plaintiff, Mark Hernandez, was formerly incarcerated in the Texas Department of Criminal Justice (TDCJ). He claims in this lawsuit that three TDCJ officers violated his constitutional rights when they used excessive force against him on Nov. 28, 2016. Two defendants, Edgar Razo and Brady Preischel, appeared and answered. Hernandez, through his pro bono counsel appointed by the Court, made multiple attempts to serve Poveda, the third defendant. On Nov. 10, 2022, Hernandez filed a status report stating that a private process server had confirmed a home address for Poveda through a neighbor and had attempted personal service at the address seven times without success. Hernandez then filed a motion for substitute service by affixing service papers to the front door, which the Court granted on Nov. 30, 2022. On Jan. 9, 2023, the process server completed service on Poveda,” Hanks said.
“Poveda did not appear in this action or answer the complaint. On Oct. 20, 2023, the Court held a scheduling conference. The Court then entered a docket control order, setting trial for August 2024. On April 24, 2024, the Court granted Hernandez’s request for entry of default against Poveda. The Clerk then entered default. On June 14, 2024, Hernandez filed a motion for default judgment against Poveda. The Court then entered an order instructing Hernandez to send the motion to Poveda at his last known address by certified mail, return receipt requested. The order further instructed Poveda to answer within 14 days and provided him with contact information for the defendants’ counsel with the Office of the Attorney General. Hernandez sent the documents to Poveda at the Westfield Place address and filed a certificate of compliance. On Aug. 1, 2024, the Court denied a motion for summary judgment filed by Preischel and Razo. The Court held docket call on Aug. 14, 2024 and set a jury trial for Sept. 17, 2024.”
But on Sept. 4, 2024, Poveda appeared and filed an answer, and two days later, filed an opposed motion to set aside the default. Poveda claimed that counsel hadn’t made contact with him until Aug. 30, 2024, when he then set about to responding to the lawsuit.
Hernandez filed a response in opposition, arguing that Poveda’s conduct was willful and that Hernandez would be prejudiced if the default were set aside. Alternatively, Hernandez requested that his claims against Poveda be severed.
“Defense counsel argued that good cause exists to set aside the default and opposed the alternate request for severance. Hernandez argued that Poveda’s conduct was willful, noting that Poveda had now confirmed that he resided at the address on Westfield Place when Hernandez served him with process in January 2023 and, moreover, that the daily work schedule described in his declaration does not explain why he did not receive the service documents affixed to his door,” Hanks said.
“Hernandez further argued that defense counsel was aware of Poveda’s address in Willis as early as Oct. 16, 2023, but demonstrated a lack of candor when he failed to disclose the address to the Court at the conference on Oct. 20, 2023, or in June 2024 when Hernandez, in compliance with the Court’s instructions, sent certified mail to Poveda using the Westfield Place address. Regarding prejudice, Hernandez argued that he filed this suit six years ago, had waited years to be heard on his claims, was ready for the scheduled trial date on Sept. 17, 2024, and did not have time to complete discovery regarding Poveda before the trial date. He also argued that Poveda’s presence at the trial would taint his claims against Preischel and Razo.”
Defense counsel maintained that an attorney from TDCJ’s Office of General Counsel had been able to contact Poveda on Aug. 30 of this year, but Hanks noted they weren’t able to answer why that one attorney, temporarily assigned to the case, was able to locate Poveda when all prior attempts were unsuccessful.
“On Sept. 10, 2024, the Court entered an order denying the motion to set aside, finding willfulness and prejudice to Hernandez, and stating that a memorandum opinion would follow. In the same order, the Court granted Hernandez’s motion to strike Poveda’s answer. On Sept. 17, 2024, Hernandez’s case against Preischel and Razo was tried to a jury, which returned a verdict on Sept. 20. The jury found that Preischel was not liable. It found that Razo was liable and awarded Hernandez $780,000 in compensatory damages,” Hanks said.
Hanks then turned to Poveda’s motion to set aside the default judgment levied against him.
“[Poveda’s] declaration confirms that Poveda resided at the Westfield Place address from May 2022 through April 2023, when Hernandez’s process server made seven attempts to serve him personally and spoke with his neighbors Although the declaration states that he worked long days in construction, this explanation does not support an absence of willfulness, given that the process server completed substitute service, as permitted by the Court, by affixing service documents to his door in January 2023. Poveda’s conclusory statement in his declaration that he ‘never received’ the served documents, without more, is inadequate. In sum, Poveda’s filings and his arguments at the hearing on Sept. 9, 2024, offer no adequate explanation as to how he could have failed to receive the documents on his door and supply no basis to conclude that his failure to act after being served was not willful. Additionally, Poveda now acknowledges that he lived in Willis from May 2023 through the present day, and thus resided there when defense counsel sent him certified mail in October 2023 informing him of this suit and offering him representation. Despite two notices from the United States Postal Service, Poveda did not claim the letter,” Hanks stated.
“Finally, defense counsel stated at the conference on Sept. 9 that a substitute attorney successfully contacted Poveda on Aug. 30, 2024, and informed him about this lawsuit. The Court notes that this fact is not included in Poveda’s declaration. In any event, does not demonstrate that Poveda was unaware of the suit based on the completed service in January 2023. Having carefully considered the parties’ filings, arguments, and all matters of record, the Court in its discretion finds that Poveda’s conduct was willful. This finding alone warrants the denial of Poveda’s motion to set aside. Poveda has not met his burden to show good cause to set the default aside.”
Hanks further found that even if this were not the case, Hernandez would nonetheless be prejudiced by any setting aside of the default judgment against Poveda.
“Poveda argues that ‘mere delay’ is insufficient to show prejudice and that a plaintiff must show loss of evidence, increased difficulties in discovery, or greater opportunity for fraud and collusion. However, Hernandez has clearly demonstrated, at a minimum, increased difficulties in discovery. The Court entered a docket control order in October 2023, setting docket call for Aug. 14, 2024, and informing the parties that the case would be tried shortly thereafter. Poveda appeared on Sept. 4, 2024, nearly a year after the docket control order, after discovery had closed, and only two weeks before the trial setting. As Hernandez argues, he filed this case in 2018 and had waited approximately six years for a trial,” Hanks said.
“After Poveda appeared, Hernandez did not have time to conduct adequate discovery regarding Poveda before trial on Sept. 17, and argued that Poveda’s attendance and participation at the trial would prejudice his case against Preischel and Razo. He further argued that additional delay of the case, on the eve of trial and after years of litigation, would be highly prejudicial. The Court determines that Hernandez has shown prejudice. Moreover, Poveda’s representation that he now is amenable to discovery is insufficient to mitigate the prejudice to Hernandez, especially given Poveda’s willful failure to respond.”
Hanks finally ruled that Poveda’s motion to set aside the default was denied.
Furthermore, Hanks ruled that Hernandez’s motions for default judgment were granted and final judgment by default will be entered against Poveda in the amount of $800,000.
Hernandez was also awarded reasonable attorneys’ fees in the amount of $37,371.30, costs in the amount of $2,302.63 and future post-judgment interest to the date of payment at a rate of 3.95%.
U.S. District Court for the Southern District of Texas case 4:18-cv-02856
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com