United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON UNITED STATES DISTRICT COURT JUDGE.
the Court is Plaintiffs Motion for Entry of Default
Judgment, or in the Alternative, Motion for Summary Judgment
(Doc. 44) filed by Premier South, LLC
("Plaintiff') in which Plaintiff seeks a default
judgment against Premier Roofing LLC and Donald Joel Boyte,
Jr. ("Defendants"). Jurisdiction is proper under 28
U.S.C. § 1331. For the following reasons,
Plaintiffs Motion for Entry of Default Judgment, or
in the Alternative, Motion for Summary Judgment (Doc.
44) is GRANTED.
and Defendants are roofing contractors. (Doc. 44-1 at p. 7).
Plaintiff operates under the name "Premier South,"
while Defendant operates under the name "Premier
Roofing." (Id.). Plaintiff owns the trademark
rights to the name "Premier South." (Id.).
Plaintiff alleges that Defendant's name and mark are
confusingly similar to his mark, "Premier South,"
constituting willful trademark infringement. (Id.).
Plaitniff also alleges that Defendants promised to rebrand,
but did not do so. (Id.).
further alleges that the parties entered into a settlement
agreement on December 12, 2017, which Defendants breached.
(Id. at p. 13). Plaintiff avers that after engaging
in limited discovery, Defendants' attorney withdrew from
this matter. (Id.). Plaintiff asserts that
Defendants did not respond to or object to any of Plaintiff s
discovery requests. (Id.). The Clerk of Court
entered default against Defendant on January 9, 2019. (Doc.
39). Plaintiffs then filed the motion subjudice.
United States Court of Appeals for the Fifth Circuit has
adopted a three-step process to obtain a default judgment.
See New York Life Ins. Co. v. Brown, 84 F.3d 137,
141 (5th Cir. 1996). First, a default occurs when a party
"has failed to plead or otherwise defend" against
an action. Fed.R.Civ.P. 55(a). Next, an entry of default must
be entered by the clerk when the default is shown "by
affidavit or otherwise." NewYork Life, 84 F.3d
at 141. Third, a party may apply to the court for a default
judgment after an entry of default. Id. at 141;
party files for a default judgment, courts must apply a
two-part process to determine whether a default judgment
should be entered. First, a court must consider whether the
entry of default judgment is appropriate under the
circumstances. Lindsey v. Prive Corp., 161 F.3d 886,
893 (5th Cir. 1998). Several factors are relevant to this
inquiry, including: (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
the default judgment, and (6) whether the court would think
itself obliged to set aside the default on a motion by
the Court must assess the merits of the plaintiffs claims and
determine whether the plaintiff has a claim for relief.
Nishimatsu Constr. Co. v. Houston Nat'l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975); Hamdan v. Tiger
Bros. Food Mart, Inc., 2016 WL 1192679, at *2 (M.D. La.
Mar. 22, 2016).
Default Judgment is Appropriate Under the Lindsey
Court must first decide whether the entry of default judgment
is appropriate under the circumstances, by considering the
Lindsey factors. First, there are no material facts
in dispute because Defendant failed to respond to Plaintiffs
discovery requests, under Federal Rule of Civil Procedure
37(d) and 37(b)(2)(A)(i)-(vi). Second, it is undisputed that
Defendant has not responded to any of Plaintiffs attempts to
contact them after interrogatories were propounded. Third,
the grounds for granting a default judgment against the
Defendant are clearly established, as evidenced by the
action's procedural history and the Clerk's entry of
default. Fourth, the Court has no basis to find that
Defendant's failure to respond was the result of a good
faith mistake or excusable neglect because the Defendant has
failed to respond to Plaintiffs, and has not challenged the
entry of default or the instant motion. Fifth,
Defendant's failure to file any responsive pleading or
motion mitigates the harshness of a default judgment.
Finally, the Court is not aware of any facts that would lead
it to set aside the default judgment if challenged by the
Defendant. The Court therefore finds that the six
Lindsey factors weigh in favor of default.
The Sufficiency of the Pleadings
Court must also determine whether Plaintiffs' pleadings
provide a sufficient basis for a default judgement. Plaintiff
sued Defendants for trademark infringement under 15 U.S.C.
§ 1114 of the Lanham Act, and false designation of
origin under 15 U.S.C. §1125(a). In order to prevail on
a trademark infringement claim under the Lanham
a plaintiff must establish: 1) ownership of a protectable
mark, and; 2) a likelihood of confusion created by an
infringing mark. Peaches Entm't Corp. v. Entm't
Repertoire Assocs., Inc.62 F.3d 690, 692 (5th Cir.
1995). The analysis of claims ...