Stelly v. Duriso

United States Court of Appeals
for the Fifth Circuit

No. 19-20160

Rhonda Stelly,

Plaintiff—Appellee,

versus

Paul Duriso,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC 4:19-CV-708

Before Jones, Haynes, and Ho,
1
Circuit Judges.
Haynes, Circuit Judge:
Plaintiff Rhonda Stelly worked with Defendant Paul Duriso at two
union hiring halls in south Texas for over a year. In that time, Stelly alleged
that Duriso repeatedly asked her offensive, threatening, and humiliating
questions relating to her gender. Stelly eventually sued the unions she was
affiliated with, as well as a maritime association that used the hiring halls, for

1
Judge Ho concurs in Sections I, II, and III.A. He would certify the question
addressed in Section III.B to the Texas Supreme Court for consideration. See, e.g., JCB,
Inc. v. The Horsburgh & Scott Co., 941 F.3d 144, 145 (5th Cir. 2019).
United States Court of Appeals
Fifth Circuit
FILED
December 11, 2020

Lyle W. Cayce
Clerk
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sexual harassment under federal employment law, arguing that Duriso’s
conduct created a hostile work environment. Stelly also sued Duriso himself
for intentional infliction of emotional distress (“IIED”) under Texas state
law. The district court entered a default judgment in Stelly’s favor on the
IIED claim against Duriso, and Stelly ultimately prevailed at trial against one
of the other defendants. We conclude that Stelly could not pursue IIED
claim against Duriso in light of the other statutory remedies available to
Stelly. We therefore VACATE the default judgment on the IIED claim and
REMAND for further proceedings.
I. Background
Because this is an appeal of a default judgment, we take all well-
pleaded factual allegations in Stelly’s complaint as true; this section,
therefore, reflects the facts as alleged therein. U.S. ex rel. M-CO Constr., Inc.
v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987). In January 2014,
Stelly began working as a longshoreman for West Gulf Maritime Association
(“WGMA”), an organization that employs skilled longshoremen. Stelly
affiliated with two local unions of the International Longshoremen’s
Association (“ILA”): ILA local union 1316 (“ILA Local 1316”) and ILA local
union 21 (“ILA Local 21”). Stelly worked alongside Duriso, a board member
of both local unions.
Duriso started sexually harassing Stelly shortly after she started
coming to the unions’ hiring halls. On a number of occasions, Duriso asked
Stelly if she needed a “sugar daddy”—that is, someone who could help her
in exchange for romantic or sexual favors. Duriso clearly had himself in mind
for that role: he regularly described to Stelly the sexual acts he wanted to
perform on her. The consequences of rejecting Duriso’s advances were
similarly made apparent to Stelly: Duriso threatened Stelly that, if Stelly did
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not “learn how to ‘play ball’ like the other women there,” Stelly would stop
getting work.
Several months into her time at the hiring halls, Stelly filed an internal
complaint with ILA Local 21 about Duriso’s conduct. Duriso responded by
screaming at Stelly, threatening Stelly, and ordering the foremen to pass
Stelly over for jobs. ILA Local 21 did nothing to stop the harassment, so
Stelly filed another complaint, this time with WGMA, which ultimately
resulted in Duriso being suspended pending investigation. But, even then,
Duriso continued to come to the hi ring halls and harass Stelly.
Stelly eventually sued Duriso, ILA Local 1316, ILA Local 21, and
WGMA in federal district court. Stelly asserted employment discrimination
and retaliation claims against ILA Local 1316, ILA Local 21, and WGMA
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-
17, and an IIED claim against Duriso under Texas state law. Duriso evaded
service and did not defend the suit. The district court entered a default
judgment against Duriso on Stelly’s IIED claim and awarded Stelly $75,000
in damages. The other three defendants, meanwhile, went to trial on the
Title VII claims, where Stelly ultimately prevailed against ILA Local 21.
Stelly v. W. Gulf Mar. Ass’n, 407 F. Supp. 3d 673, 689 (S.D. Tex. 2019),
appeal dismissed sub nom. Stelly v. Int’l Longshoremen’s Ass’n Local 21, No. 19-
20730, 2019 WL 8504706 (5th Cir. Oct. 30, 2019).
2
Before that trial was
held, the district court certified the judgment against Duriso as a final

2
At trial, the district court granted WGMA’s motion for judgment as a matter of
law at the close of Stelly’s affirmative case. Stelly, 407 F. Supp. 3d at 677 n.2. After the
jury initially awarded Stelly $5,400 in lost wages and $200,000 in punitive damages against
ILA Local 21 and $600 in lost wages and $100,000 in punitive damages against ILA Local
1316, id. at 677, the district court granted ILA Local 1316 judgment as a matter of law and
directed remittitur with respect to ILA Local 21, proposing an amended judgment in the
amount of $60,400, id. at 689. Stelly accepted the amended judgment.
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judgment under Federal Rule of Civil Procedure 54(b). Duriso timely
appealed.
II. Jurisdiction & Standard of Review
The district court had federal question jurisdiction over the Title VII
claims under 28 U.S.C. § 1331. The district court also had supplemental
jurisdiction over the IIED claim against Duriso under 28 U.S.C. § 1367(a)
because it arose out of the same case or controversy as the Title VII claims.
We have jurisdiction to review the district court’s judgment under 28 U.S.C.
§ 1291. See Recreational Props., Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311,
313 (5th Cir. 1986) (“The appeal of a default judgment . . . [is] a final
judgment under 28 U.S.C. § 1291 . . . .”).
We review the entry of a default judgment for abuse of discretion and
any underlying factual determinations for clear error. Wooten v. McDonald
Transit Assocs., Inc., 788 F.3d 490, 495 (5th Cir. 2015). Because we generally
prefer that cases be resolved on the merits, however, we perform that review
“with a grain of salt”: even a “slight abuse of discretion may justify
reversal.” Id. at 496 (internal quotation marks and citation omitted).
III. Discussion
A. Rule 60
We first consider whether Duriso can appeal from the default
judgment without having first moved to set aside that default judgment in the
district court. Our court has previously identified a circuit split on whether
a party must file a Rule 60(b) motion challenging a default judgment in the
district court prior to appealing, but we have thus far declined to opine on the
subject in a published opinion. See BHTT Ent., Inc. v. Brickhouse Café &
Lounge, L.L.C., 858 F.3d 310, 314 (5th Cir. 2017); cf. SUA Ins. Co. v. Buras,
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421 F. App’x 384, 385 n.2 (5th Cir. 2011) (per curiam
3
) (identifying that a
party “[o]rdinarily” files a Rule 60(b) motion but concluding that doing so is
not necessary for an appeal).
We now hold that a party’s failure to file a motion to set aside a default
judgment in the district court does not prevent the party from appealing that
judgment to our court.
4
A final default judgment is, at bottom, a final
judgment capable of immediate appellate review. See Recreational Props.,
804 F.2d at 313; see also 10A C
HARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 2684 (4th ed. 2020)
(“As a final judgment, a judgment entered pursuant to Rule 55(b)(2) may be
reviewed immediately by the court of appeals.”). No statute or rule of civil
procedure requires a defaulting party to first contest the default judgment in
district court. In particular, Rule 55(c) itself makes clear that a party may
move under Rule 60(b) to set aside a default judgment, but it does nothing to
suggest that the party must do so. See F
ED. R. CIV. P. 55(c).
5

3
Because this opinion is unpublished, it is non-precedential, but we cite it due to
the similarity to the issue presented here.
4
We accordingly agree with the Second and Sixth Circuits (which generally allow
a party to appeal a default judgment without first filing a Rule 60(b) motion) and disagree
with the Ninth and Eleventh Circuits (which generally do not). Compare Pecarsky v.
Galaxiworld.com Ltd., 249 F.3d 167, 170–71 (2d Cir. 2001), and Prime Rate Premium Fin.
Corp. v. Larson, 930 F.3d 759, 768 (6th Cir. 2019), with Consorzio Del Prosciutto Di Parma v.
Domain Name Clearing Co., LLC, 346 F.3d 1193, 1195 (9th Cir. 2003), and Commodity
Futures Trading Comm’n v. Am. Commodity Grp. Corp., 753 F.2d 862, 866 (11th Cir. 1984)
(per curiam).
5
The Supreme Court has made clear that only statutory provisions can be
jurisdictional, not “court-made” procedural rules. Hamer v. Neighborhood Hous. Servs. of
Chi., 138 S. Ct. 13, 16 (2017). Therefore, even if we were to conclude that a Rule 60 motion
is a prerequisite to appealing a default judgment, that requirement could only be a
mandatory claim-processing rule, not a jurisdictional one. Cf. Recreational Props., 804 F.2d
at 313; accord Prime Rate, 930 F.3d at 768 (“Any Rule 60(b) exhaustion mandate—which
would not flow out of any federal statute—instead would count as a non-jurisdictional
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To be sure, in most circumstances, a party will benefit from using such
a motion to develop the record. See Wooten, 788 F.3d at 495–96. The
defaulting party will be unable to raise any fact questions that were not
brought before the district court. See U.S. ex rel. M-CO Constr., 814 F.2d at
1014 (“The default judgment establishes the truth of these factual
allegations.”). Unpled affirmative defenses are also off the table. See Henry
v. First Nat’l Bank of Clarksdale, 595 F.2d 291, 298 n.1 (5th Cir. 1979) (noting
that affirmative defenses “are considered waived if not pleaded in the trial
court”). But the lack of a Rule 60(b) motion is not an absolute barrier: if the
existing record and pleadings do not support the judgment, the defaulting
party can prevail on appeal without having raised the issues first in the district
court with a Rule 60(b) motion. See, e.g., Pecarsky v. Galaxiworld.com, Ltd.,
249 F.3d 167, 173–74 (2d Cir. 2001) (vacating a default judgment in large part
because the defendant’s existing filings before the district court suggested a
complete defense).
B. IIED Claim
That brings us to the merits: whether the district court appropriately
entered a default judgment against Duriso on Stelly’s IIED claim. Under
Texas law, a plaintiff bringing an IIED claim must demonstrate that the
defendant intentionally or recklessly engaged in extreme or outrageous
conduct that resulted in severe emotional distress. Standard Fruit &
Vegetable Co. v. Johnson, 985 S.W.2d 62, 66 (Tex. 1998). But not all such
conduct is actionable under IIED—the plaintiff must also demonstrate that
there is no alternative cause of action available to address the alleged

claims-processing rule.” (quotation omitted)). Arguments concerning mandatory claim-
processing rules are generally forfeited if the relevant party does not brief them. See Hamer,
138 S. Ct. at 16. Stelly did not raise any argument with respect to Rule 60(b) in her briefs,
conceding same on oral argument; therefore, any such argument would be forfeited.
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misconduct. Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447
(Tex. 2004). That is because IIED is a “gap-filler” tort reserved for “those
rare instances in which a defendant intentionally inflicts severe emotional
distress in a manner so unusual that the victim has no other recognized theory
of redress.” Id.
Accordingly, a plaintiff generally cannot sustain an IIED claim if the
plaintiff could have brought a sexual harassment claim premised on the same
facts: “when the gravamen of the plaintiff’s complaint is for sexual
harassment, the plaintiff must proceed solely under a statutory claim unless
there are additional facts, unrelated to sexual harassment, to support an
independent tort claim for intentional infliction of emotional distress.” Id. at
441. In particular, the Texas Supreme Court has noted that IIED claims
against both employers and individual employees premised on sexually
harassing conduct can be foreclosed by alternative causes of action under
Title VII or the Texas Commission on Human Rights Act (“TCHRA”). See
id. at 447; Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 815–16 (Tex. 2005)
(rejecting IIED claims against both an employer and an individual employee
because the claims were premised on sexual harassment actionable under
other statutes).
6

6
The Texas Courts of Appeals and federal district courts are split on whether the
lack of individual liability under Title VII and the TCHRA constitutes a “gap” with respect
to coworkers and supervisors that IIED can fill. See generally Grant v. Lone Star Co., 21 F.3d
649, 653–54 (5th Cir. 1994) (“Only ‘employers,’ not individuals acting in their individual
capacity who do not otherwise meet the definition of ‘employers,’ can be liable under
[T]itle VII.”); Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 742 (Tex. App.—Waco
2000, pet. denied) (“[S]upervisors and managers are not liable in their individual capacities
for alleged acts of discrimination under the TCHRA.”). Some courts have found a “gap.”
See Garcia v. Shell Oil Co., 355 S.W.3d 768, 778 (Tex. App.—Houston [1st Dist.] 2011, no
pet.); Dixon v. State Farm Mut. Auto. Ins. Cos., 433 F. Supp. 2d 785, 790 (N.D. Tex. 2006);
Sauceda v. Bank of Tex., N.A., No. CIV.A.3:04-CV-2201-P, 2005 WL 578474, at *5
(N.D. Tex. Mar. 9, 2005). Others have not. See Roane v. Dean, Nos. 03-19-00307-CV, 3-
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The gravamen of Stelly’s IIED claim here is for sexual harassment.
All of Stelly’s IIED allegations against Duriso stem from Duriso’s sexually
harassing conduct in the hiring halls and Duriso’s related attempts to
retaliate against Stelly for reporting that conduct. Stelly alleged that Duriso
repeatedly asked her offensive, threatening, and humiliating questions
because of her sex, including direct invitations to help Stelly advance
professionally if she gave him sexual favors. Stelly further alleged that Duriso
talked “constantly” about sexual things he wanted to do to her. These are
all sexual harassment allegations. Indeed, in both the internal complaints
Stelly filed and the IIED section of the complaint Stelly filed in federal district
court, Stelly characterized Duriso’s conduct as such: Duriso, Stelly alleged,
had engaged in “sexual harassment” and thereby created a “hostile work
environment.”
From the beginning of recognizing this tort, the Texas Supreme Court
has made clear that IIED is a high threshold to establish. See Twyman v.
Twyman, 855 S.W.2d 619, 621–22 (Tex. 1993) (adopting cause of action and
emphasizing IIED is subject to “rigorous legal standards”). Because of our
determination above, we need not consider whether Stelly’s allegations
identify a disturbing pattern of behavior that would give rise to an IIED claim

19-00352-CV, 2020 WL 2078252, at *4–5 (Tex. App.—Austin Apr. 30, 2020, pet. filed);
Swafford v. Bank of Am. Corp., 401 F. Supp. 2d 761, 764 (S.D. Tex. 2005).
Although we recognize that the Texas Supreme Court has not definitively resolved
whether the lack of individual liability under Title VII or the TCHRA leaves a “gap”
fillable by IIED, the court’s decision in CreditWatch strongly suggests that its answer is
“no.” In that case, the court rejected IIED claims against both an employer and an
individual because those claims “stemmed from [the employee]’s lewd advances” and
were therefore “covered by other statutory remedies.” 157 S.W.3d at 816. We predict the
Texas Supreme Court would follow a similar approach here, where the allegations
underlying Stelly’s IIED claim all stem from Duriso’s sexual harassment. See Ironshore
Eur. DAC v. Schiff Hardin, L.L.P., 912 F.3d 759, 764 (5th Cir. 2019) (“If the Texas
Supreme Court has not ruled on an issue, we make an Erie guess, predicting what the Texas
Supreme Court would do if faced with the same facts.” (cleaned up)).
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in other settings. Stelly had alternative remedies here. Specifically, because
Duriso’s conduct happened entirely in connection with the workplace, Stelly
could seek redress against WGMA, ILA Local 1316, and ILA Local 21 under
Title VII.
7
Indeed, Stelly did just that, using Duriso’s conduct as a basis for
her Title VII claims against those defendants. Further, Stelly ultimately
prevailed on such claims against ILA Local 21. See Stelly, 407 F. Supp. 3d at
678–81. The availability of those statutory remedies on the same facts
forecloses Stelly’s IIED claim against Duriso. See Hoffmann-La Roche,
144 S.W.3d at 447; CreditWatch, 157 S.W.3d at 816. There is, in short, no
“gap” that IIED needs to fill in this case. Hoffmann-La Roche, 144 S.W.3d at
447. The district court therefore abused its discretion in entering a default
judgment on that claim.
Accordingly, we VACATE the district court’s default judgment on
the IIED claim and REMAND to the district court for further proceedings
consistent with this opinion.
8

7
In its ruling on the other defendants’ post-trial motions for judgment as a matter
of law, the district court identified that we have not expressly determined whether Title
VII applies to labor organizations. Stelly, 407 F. Supp. 3d at 678 (concluding that the weight
of authority from other circuits indicates that labor organizations can be sued under Title
VII). Neither party to this appeal suggests that Stelly was unable to pursue Title VII claims
against ILA Local 1316 and ILA Local 21, and so we need not (and do not) resolve the
question of labor organization liability under Title VII generally.
8
Because we conclude that the district court erred in determining that Stelly could
sustain an IIED claim against Duriso, we do not address Duriso’s arguments that the
district court’s default judgment did not comply with Rule 54.
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