United States District Court, N.D. Texas, Dallas Division
JOE HAND PROMOTIONS, INC.
THIBODEAUX'S AUTHENTIC CAJUN COOKIN LLC d/b/a THIBODEAUX'S CAJUN COOKIN', et al.
MEMORANDUM OPINION AND ORDER
GREN SCHOLER UNITED STATES DISTRICT JUDGE.
Order addresses Defendants' Motion to Set Aside Entry of
Default and Supporting Briefing [ECF No. 13]. For the
following reasons, the Court grants the Motion.
8, 2019, Joe Hand Promotions, Inc. ("Plaintiff) filed
suit against Thibodeaux's Authentic Cajun Cookin, LLC
d/b/a Thibodeaux's Cajun Cookin' and Louis
Thibodeaux, d/b/a Thibodeaux's Cajun Cookin'
(collectively "Defendants"). See Mot.
¶ 1. Defendants were served on August 17, 2019. See
Id. ¶ 2. Shortly thereafter, Defendants retained an
attorney to file an answer and defend them in this matter.
See Id. Ex. 1 ¶ 6. That attorney allegedly
represented to Defendants that he would timely file an answer
on Defendants' behalf. See Id. Despite that
representation, Defendants did not file an answer by their
prescribed deadline. See ECF No. 10. Upon Plaintiffs
request, the Clerk entered default on September 25, 2019.
See ECF No. 11. Defendants filed their pending
Motion to Set Aside Entry of Default and Supporting Briefing
on October 29, 2019.
may set aside an entry of a default for good cause shown.
Fed, R. Civ. P. 55(c); Lacy v. Sitel Corp., 227 F.3d
290, 291-92 (5th Cir. 2000) (citation omitted). In
determining whether good cause is present to set aside a
default, a court considers "whether the default was
willful, whether setting it aside would prejudice the
adversary, and whether a meritorious defense is
presented." Lacy, 227 F.3d at 292 (citation and
quotation marks omitted). A court also considers whether the
defaulting party "acted expeditiously to cure the
default". Id. (citation omitted).
judgments are "generally disfavored in the law" and
"should not be granted on the claim, without more, that
the defendant ha[s] failed to meet a procedural time
requirement." Id. (quoting Mason &
Hanger-Silas Mason Co. v. Metal Trades Council, 726 F.2d
166, 168 (5th Cir. 1984)). The Fifth Circuit has
"adopted a policy in favor of resolving cases on the
merits and against the use of default judgments."
Rogers v. Hartford Life & Accident Ins., 167
F.3d 933, 936 (5th Cir. 1999) (citation omitted); see
also Sun Bank of Ocala v. Pelican Homestead & Sav. Ass
'n, 874 F.2d 274, 276 (5th Cir, 1989) ("Default
judgments are a drastic remedy, not favored by the Federal
Rules and resorted to by the courts in extreme situations ...
[and] are available only when the adversary process has been
halted because of an essentially unresponsive party."
(internal citations and quotation marks omitted)).
Motion and evidence demonstrate that their failure to file an
answer or otherwise respond timely was the result of the
reasonable but mistaken belief that their previous attorney
would prepare and file an answer. See Mot.
¶¶ 1-3. Accordingly, the Court determines that,
under these circumstances, Defendants' failure to respond
was not willful, but rather the result of excusable neglect.
Cf AAR Supply Chain, Inc. v. N&P Enters., Civ.
A. No, 3:16-CV-2973-L, 2017 WL 5626356, at *2 (N.D. Tex. Nov.
22, 2017) (finding failure to answer was not willful where
defendant believed another entity would be handling the
establish prejudice, "the plaintiff must show that the
delay will result in the loss of evidence, increased
difficulties in discovery, or greater opportunities for fraud
and collusion." Lacy, 227 F.3d at 293 (quoting
Berthelsen v. Kane, 907 F.2d 617, 621 (6th Cir.
1990)); see also Hibemia Nat'l Bank v. Administration
Cent, Sociedad Anonima, 776 F, 2d 1277, 1280 (5th Cir.
1985) (concluding that prejudice to the plaintiff must
involve more than the mere possibility of delay inherent in
every case). No. prejudice exists to the plaintiff
"where the setting aside of the default has done no harm
to plaintiff except to require it to prove its case."
Lacy, 227 F.3d at 293 (citation omitted). Here, the
case is still in the initial stages of litigation, and
therefore, Plaintiff has not suffered prejudice sufficient to
deny the Motion. See AAR Supply Chain, 2017 WL
5626356, at *2 (finding no legal prejudice, despite
Plaintiffs incurrence of attorneys' fees and costs).
defendant's allegations are meritorious if they contain
'even a hint of a suggestion' which proven at trial,
would constitute a complete defense." Joe Hand
Promotions, Inc. v. Adame, No. EP-12-CV-141-KC, 2012 WL
3561367, at *3 (W.D. Tex. Aug. 16, 2012) (quoting Side by
Side Redevelopment, Inc. v. City of New Orleans, Civ. A.
No. 09-03861, 2010 WL 375237, at *3 (E.D. La. Jan. 25,
2010)). Here, Defendants allege, among other things, they are
not liable under the Federal Communications Act
("FCA") because the event at issue was displayed
through an online service on the internet, and not through
cable transmission or satellite transmission. See
Mot. ¶¶ 10-12. Several courts have expressed
skepticism as to whether the FCA applies in these types of
circumstances. See, e.g., Joe Hand Promotions Inc. v.
Spain, No. CV-15-00152-PHX- SMM, 2016 WL ...