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Broadcast Music, Inc. v. Laguana Beach Daiquiris, LLC

United States District Court, M.D. Louisiana

November 15, 2017




         Before 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 GRANTED.

         I. BACKGROUND

         This 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 ¶¶ 19-23).

         Plaintiffs 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. at 32).

         Plaintiffs 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.


         The 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. Id.

         Default 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 Cir. 1996).

         In 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).


         A. Appropriateness of Default Judgment

         The 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.

         B. Viable ...

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