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BHTT Entertainment, Inc. v. Brickhouse Cafe & Lounge, L.L.C.

United States Court of Appeals, Fifth Circuit

May 24, 2017


         Appeal from the United States District Court for the Northern District of Texas

          Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge. [*]

          JERRY E. SMITH, Circuit Judge:

         Brickhouse Café & Lounge, LLC, Brickhouse Restaurant and Bar, LLC, and Jonah Investments, LLC (collectively, "Brickhouse"), appeal a default judgment. BHTT Entertainment, Incorporated ("BHTT"), challenges this court's jurisdiction and contends that, in the event we do have appellate jurisdiction, we should affirm the default. We conclude that we do have jurisdiction and that the district court was correct to enter default judgment.


         This case began as a garden-variety trademark dispute. BHTT owns the trademarks to Brick House Tavern Tap and Brick House Subs (collectively, "the BHTT Marks"). Brickhouse operates two restaurants in the Dallas area- one in Arlington, one in Desoto-promoted at various times as The Brickhouse Lounge, Brickhouse Café & Lounge, and Brickhouse Grill & Bar (collectively, "the Brickhouse Marks"). BHTT concluded that Brickhouse's usage of the Brickhouse Marks infringed on the BHTT Marks, so it sued Brickhouse Café & Lounge LLC (and only that specific LLC), alleging trademark infringement, in August 2015.

         After an entry of default against Brickhouse Café & Lounge, LLC, BHTT discovered that the other two defendants also had managerial roles with regard to the Brickhouse Lounge. BHTT amended its complaint to add them as defendants and attempted to serve its complaint on Charles Bailey, the registered agent for each component of Brickhouse. Bailey proved elusive; his listed address was an open field beside Interstate 20 in Grand Prairie, Texas, and attempts to contact him at other businesses and residences associated with him met with failure. Faced with Bailey's elusiveness, BHTT successfully moved for substituted service under Federal Rule of Civil Procedure 4(e)(1) and Texas Rule of Civil Procedure 106(b)(2), whereupon BHTT served Brickhouse in the manner the district court had prescribed.

         Brickhouse did not respond. BHTT moved for an entry of default, the clerk entered it, BHTT moved for a default judgment, and the district court entered a default judgment in April 2016. Only then did Brickhouse deign to appear; it did not contest the default judgment in district court but instead appealed.

         Brickhouse's initial brief in this court was due August 1, 2016, but it failed to meet both that deadline and an extended deadline granted after a motion for extension of time. Faced with that dilatory conduct, the clerk of this court entered an order dismissing Brickhouse's appeal for want of prosecution pursuant to Fifth Circuit Rule 42.3. That dismissal returned the mandate to the district court. Brickhouse's counsel moved to reinstate the appeal; the clerk initially denied that motion but granted it upon reconsideration and reopened the case. The order the clerk issued reopening the case, however, did not state explicitly that it was recalling the mandate from the district court. Briefing in this case has continued without any major problems since that time.

         BHTT avers that the clerk's order reopening the appeal did not suffice to recall the mandate and that the failure to recall the mandate divests us of appellate jurisdiction. In the alternative, BHTT contends that Brickhouse's failure to contest the default judgment first in the district court means that all its issues in the court of appeals are waived, based on our well-known practice of generally not considering arguments not first made before the district court.[1]And, finally, BHTT contends that the district court was correct in its judgment of default regardless. Brickhouse does not respond to the first two arguments raised by BHTT; it confines its appeal to challenges to service of process and answers to BHTT's trademark claims on the merits.[2]


         BHTT urges that this court never recalled the mandate that issued when this case was initially dismissed for want of prosecution and that the failure to recall the mandate is fatal to appellate jurisdiction. The list of cases in which this court states unequivocally that the district court re-assumes jurisdiction once the mandate issues is long.[3] Equally numerous are the cases in which this circuit has debated whether to recall the mandate as a means of once again having jurisdiction over a given case.[4] We have no difficulty in concluding that the mandate is the jurisdictionally significant document here and that recall of the mandate is necessary for this court to regain jurisdiction over an appeal dismissed for want of prosecution.

         BHTT presents two theories why the clerk could not have recalled the mandate. First, it points out that the clerk's order reinstating this appeal merely stated that the "[c]ase is reopened"; BHTT suggests that that terse statement did not suffice to recall the mandate. Second, BHTT contends that, even in the event the clerk's pronouncement purported to recall the mandate, the clerk lacked the power to do so under the Fifth Circuit's rules, and so any supposed recall was ineffective.

         We dispense with the second argument first. The circuit's rules leave us with the firm conviction that the clerk can recall a mandate under the circumstances presented here. Fifth Circuit Rule 27.1.6 gives the clerk the authority to "reinstate appeals dismissed by the clerk"; this is the rule under which Brickhouse moved to reinstate its appeal. No one contests that the mandate issues immediately upon the dismissal of an appeal by the clerk, and it would make little sense to give the clerk ...

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