United States District Court, E.D. Louisiana
J&J SPORTS PRODUCTIONS, INC.
MARIA ELSNER-GOMEZ D/B/A DAIQUIRI ISLAND SPORTS BAR AND GRILL
ORDER AND REASONS
filed a “Motion for Summary Judgment Seeking to Enforce
Compromise and Settlement.” Rec. Doc. 17. Defendant did
not file an opposition. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 17)
BACKGROUND AND PROCEDURAL HISTORY
August 2016, Plaintiff J&J Sports Productions, Inc. sued
Defendant Maria Elsner-Gomez d/b/a Daiquiri Island Sports Bar
& Grill for allegedly violating various federal laws by
showing a pay-per-view broadcast of a boxing match without
the proper commercial license. See Rec. Doc. 1
¶¶ 15-23. In April 2017, Plaintiff notified the
Court that the parties had reached a settlement and that
performance under the settlement agreement would not be
completed for at least twenty-four months. See Rec.
Doc. 15. Accordingly, the Court entered an order dismissing
the case without prejudice, but retaining jurisdiction to
enforce the settlement agreement for a reasonable period of
time, not to exceed twenty-four months. See Rec.
January 2018, Plaintiff filed the instant motion to enforce
the settlement agreement. See Rec. Doc. 17.
Plaintiff argues that Defendant violated the settlement
agreement via a cross-default provision by failing to make a
required payment under a related settlement agreement.
See Rec. Doc. 17-1 at 2-3. Plaintiff argues that,
because Defendant violated the settlement agreement, the
Court should enter a consent judgment that the parties agreed
to during settlement negotiations. See Rec. Doc. 17
at 1-2. Plaintiff attached two sets of documents to its
motion. The first set of documents is an email conversation
between counsel for Plaintiff and counsel for Defendant in
which counsel reach agreement on the settlement terms.
See Rec. Docs. 17-6 to 17-11; 17-14 to 17-16. The
second set of documents includes an unsigned copy of the
settlement agreement and consent judgment. See Rec.
Docs. 17-12; 17-13.
judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) (quoting Fed.R.Civ.P. 56(c)). A genuine issue of
material fact exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
the movant bears the burden of proof, it must
“demonstrate the absence of a genuine issue of material
fact” using competent summary judgment evidence.
Celotex, 477 U.S. at 323. But “where the
non-movant bears the burden of proof at trial, the movant may
merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir.
1994). Even when a motion for summary judgment is unopposed,
the movant must still carry its burden of showing that there
is no genuine issue of material fact. See Hibernia
Nat'l Bank v. Administracion Cent. Sociedad Anonima,
776 F.2d 1277, 1279 (5th Cir. 1985). When the movant meets
its burden, the burden shifts to the non-movant, who must
show by “competent summary judgment evidence”
that there is a genuine issue of material fact. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986); Lindsey, 16 F.3d at 618.
has met its burden because it has provided multiple pieces of
evidence confirming that the parties firmly reached a
compromise and that Defendant has violated the terms of that
compromise; no genuine issue of material fact exists.
Plaintiff attached a copy of the settlement agreement to the
motion for summary judgment. See Rec. Doc. 17-12.
The agreement states, inter alia, that Defendant
“agrees to a consent judgment for the sum of Twenty
Thousand and 00/100 ($20, 000) Dollars, without interest,
” if Defendant “should fail to perform under the
settlement” in a related case. Id. at 2
(referring to the settlement agreement in “J&J
Sports Productions, Inc. v. Montgomery Norton, Inc. et al
(No. 2:15-CV-04387[)]”). Defendant has failed to
perform under the related settlement agreement. See
J&J Sports Prods., Inc. v. Montgomery Norton, Inc., et
al., No. 15-4387, Rec. Doc. 44 (E.D. La. Apr. 18, 2018)
(granting in part plaintiff's motion for summary judgment
to enforce settlement agreement because defendant failed to
make required payments). Therefore, Defendant is also in
default under the settlement agreement in the instant matter,
which entitles Plaintiff “to immediately execute upon
the consent judgment . . . .” Rec. Doc. 17-12 at 2
(referring to Rec. Doc. 17-13).
has also provided evidence of the parties' firm agreement
to the terms of the settlement. For example, Plaintiff
notified the Court of settlement in April 2017 and indicated
that settlement was related to another case pending in this
Court. See Rec. Doc. 15. Defendant's counsel
stated in an e-mail to Plaintiff's counsel that he agreed
with the notice. Rec. Doc. 17-9 at 1. In another e-mail to
Plaintiff's counsel, Defendant's counsel agreed that
“[i]f default occurs under the first settlement
agreement [in the related case], the consent judgment related
to the [instant] matter immediately becomes executory . . .
.” Rec. Doc. 17-7 at 4. Finally, in defense
counsel's motion to withdrawn, defense counsel
represented that “[a] settlement in this matter was
agreed upon by both parties” and that “Plaintiff
is entitled to . . . seek summary judgment to enforce the
settlement agreement” because Defendant is in default.
Rec. Doc. 18 at 2.
motion for reconsideration of this Order and Reasons based on
the appropriate Federal Rule of Civil Procedure, if any, must
be filed within fourteen (14) days of this Order and Reasons.
The motion must be accompanied by an opposition memorandum to
the underlying motion for summary judgment (Rec. Doc. 17) and
explain why Defendant neither (1) filed a timely opposition
to Plaintiff's motion for summary judgment (Rec. Doc. 17)
nor (2) participated in the telephone conference scheduled
for May 10, 2018 (see Rec. Doc. 21). If
Defendant does not file a motion for reconsideration within
fourteen (14) days, judgment will be entered against
Defendant in the amount of twenty thousand dollars ($20,
000.00), per the terms of the consent judgment agreed to by
the parties. See Rec. Doc. 17-13.
a motion for reconsideration would not have been necessary
had a timely opposition memorandum been filed, the costs
incurred in connection with the motion, including
attorney's fees, will be assessed against the party
moving for reconsideration. See Fed. R. Civ. P. 16,
83. A statement of costs conforming to Local Rule 54.3 shall
be submitted by any party desiring to be awarded costs and