United States District Court, M.D. Louisiana
BROADCAST MUSIC, INC., ET AL.
LAGUANA BEACH DAIQUIRIS, LLC, ET AL.
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is the Motion for Default Judgment
(Doc. 23) filed by Plaintiffs. Defendant did not
file an opposition to the motion, and oral argument is not
necessary. For the reasons that follow, Plaintiffs motion is
action concerns alleged violations of the United States
Copyright Act of 1976, 17 U.S.C. § 501. (Doc. 9 at
¶ 1) Plaintiffs in this case are Broadcast Music, Inc.
("BMI"), a company that has been granted the right
to license the public performance rights of over 10 million
copyrighted musical compositions, and the owners of the
copyrights to the musical compositions that are at issue in
this lawsuit. (Id. at ¶¶ 3-18). Defendants
are Jarreau Investments, LLC, which operates Laguna Beach
Daiquiris, LLC in Denham Springs, Louisiana, and Tony
Jarreau, a member of Jarreau investments, who is responsible
for the operation and management of Jarraeau Investments, LLC
and Laguna Beach Daiquiris. (Id. at ¶¶
bring five claims of copyright infringement based on
Defendants' alleged unauthorized public performance of
music in BMI's catalogue. (Id. at ¶ 26).
Plaintiffs aver that they have contacted Defendants more than
fifty times since October 2013, to inform Defendants of the
need to purchase a license for the performance of musical
compositions in BMFs catalogue. (Id. at ¶ 25).
Plaintiffs contacted Defendants by phone, mail, and email,
and sent multiple cease and desist notices. (Id.).
Plaintiffs assert that they are suffering harm from the
continuing refusal of Defendants to refrain from unauthorized
public performances of their copyrighted works. (Id.
filed suit seeking injunctive relief, statutory damages, and
attorneys' fees under the Copyright Act. (Doc. 1 at pp.
6-7). On August 19, 2016, Plaintiffs filed the Amended
Complaint. (Doc. 9). Defendants Laguna Beach Daiquiris, LLC
and Tony Jarreau were served with a copy of the Summons and
Amended Complaint on August 30, 2016, pursuant to Federal
Rule of Civil Procedure 4(c). (Doc. 12). Defendants were
required to file and serve their Answer on Plaintiffs
twenty-one days after receipt of the Amended Complaint, which
in this case would have been on September 19, 2016. See
Fed.R.Civ.P. 12(a)(1)(A). On October 18, 2016, the Clerk of
Court filed an entry of default into the record. (Doc. 16).
To date, Defendants have filed no responsive pleadings.
service of a summons triggers a duty to respond to a
complaint and a failure to respond may result in the entry of
default or default judgment under Federal Rule of Civil
Procedure 55. Rogers v. Hartford Life & Accident Ins.
Co., 167 F.3d933, 937-39 (5th Cir. 1999). When a party
establishes by affidavit or some other method that there has
been a default, the Clerk of Court will enter the default.
N.Y.Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th
Cir. 1996). Once there has been an entry of default, the
plaintiff may apply to the Court for a default judgment.
judgments are usually disfavored under the Federal Rules of
Civil Procedure. Sun Bank of Ocala v. Pelican Homestead
& Sau. Ass'n, 874 F.2d 274, 276 (5th Cir. 1989).
A default judgment is considered to be a drastic remedy that
should only be available "when the adversary process has
been halted because of an essentially unresponsive
party." Id. (quoting H.F. Livermore Corp.
v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691
(D.C. Cir. 1970)). Therefore, a party is not entitled to a
default judgment, even where the defendant is technically in
default. Ganther v. Ingle, 75 F.3d 207, 212 (5th
determining whether a default judgment should be entered, the
Fifth Circuit has developed a two-part test. Taylor v.
City of Baton Rouge, 39 F.Supp.3d 807, 813 (M.D. La.
2014). First, the Court must determine whether the entry of
default judgment is appropriate under the circumstances.
Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir.
1998). Factors relevant to this determination include: (1)
whether there are material issues of fact at issue; (2)
whether there has been substantial prejudice; (3) whether the
grounds for default have been clearly established; (4)
whether the default was caused by excusable neglect or good
faith mistake; (5) the harshness of default judgment; and (6)
whether the court would think itself obliged to set aside the
default on a motion by Defendant. Id. Second, the
Court must assess the merits of Plaintiffs claims and find a
viable claim for relief. Nishimatsu Constr. Co. v. Hous.
Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).
Appropriateness of Default Judgment
Court finds that default judgment is appropriate under the
circumstances of this case and that Plaintiffs state a viable
claim for relief. Default Judgment is appropriate because
Defendants failed to file a proper and timely answer and have
failed to produce evidence to show that its failure to file
an answer resulted from "good faith mistake or excusable
neglect." SeeLindsey, 161 F.3d at 893.
Additionally, Defendants' failure to file an opposition
to the motion or otherwise defend the instant suit for more
than seven months mitigates the harshness of a default
judgment. Lastly, the Court is not aware of any facts that
would constitute "good cause" to set aside default
judgment if Defendant filed a motion requesting such.