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Moreland v. A-Q-B, LLC

United States District Court, W.D. Texas, Waco Division

December 11, 2019

A-Q-B, LLC, Defendant.



         Before the Court is Plaintiffs' Motion for Entry of Default Judgment. ECF Nos. 10, 12. Having reviewed the motion, the governing law, and the file as a whole, the Court now enters the following opinion and order granting the motion.

         I. BACKGROUND

         This case concerns an action for damages and injunctive relief relating to Defendant A-Q-B, LLC d/b/a Babes Gentlemen's Club of Nolanville's (“Babes”) misappropriation and unauthorized publication of images of Plaintiffs, who are world-renowned professional models, in order to promote its strip club. Each Plaintiff is a successful model/actress who earns her livelihood by promoting her image, likeness, and/or identity to select clients and commercial brands. Moreover, each Plaintiff relies on her professional reputation for modeling, acting, hosting and other professional opportunities to continue to ensure future success in the industry. In order to further her career, each Plaintiff seeks to control the use and dissemination of her image from unauthorized use.

         Defendant is engaged in the business of selling alcohol and food in an atmosphere were nude and/or semi-nude women entertain the business' clientele. In furtherance of the operation of Babes Gentlemen's Club, A-Q-B, LLC owned, operated, and controlled Babes' social media accounts and used such social media to post advertisements for Babes. Many of these advertisements contained images of Plaintiffs, which were allegedly misappropriated and altered by Defendant to make it appear that Plaintiffs worked at or endorsed Babes. None of the Plaintiffs made such an appearance at the club or authorized Defendant to use their respective image and/or likeness in Babes' advertisements.

         On June 13, 2019, Plaintiffs brought the instant action against Defendants for violations of the Lanham Act and other causes of action. ECF No. 1. Plaintiffs properly served Defendants. ECF Nos. 3, 8. However, Defendant has not answered, appeared, or otherwise defended themselves in this action. The Clerk of the Court entered a default on October 30, 2019. ECF No. 14. Plaintiff filed the instant Motion for Entry of Default Judgment on September 19, 2019. ECF Nos. 10, 12. On December 5, 2019, the Court held a hearing on the damages requested by Plaintiffs in their Motion for Default Judgment. Defendant has failed to respond or appear in this case.


         “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). After a defendant has defaulted, judgment shall be entered upon affidavit of the amount due if the plaintiff's claim is for a sum certain or a sum that can be made certain by computation. Fed.R.Civ.P. 55(a). The plaintiff must also file an affidavit stating whether the defendant is in military service before the Court can issue a default judgment. 50 U.S.C.A. § 3931 (West) (formerly 50 App. U.S.C. § 521(b)(1)). The Court may enter a final judgment without conducting a trial on liability. Fed.R.Civ.P. 55(b).

         Default judgments are disfavored and should only be granted in “extreme situations.” Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001) (citing Sun Bank of Ocala v. Pelican Homestead and Savings Ass'n, 874 F.2d 274, 276 (5th Cir. 1989)). However, granting a default judgment is generally a matter of discretion of the Court. Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999). The plaintiff “is not entitled to a default judgment as a matter of right, even where the defendant is technically in default.” Settlement Funding, LLC v. TransAmerica Occidental Life Ins. Co., 555 F.3d 422, 424 (5th Cir. 2009).

         Obtaining a default judgment is a three-step process: (1) default by the defendant; (2) an entry of default; and (3) the default judgment itself, issued by the court. N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). However, there can be no default if the defendant has not been served. Pinaud v. Cnty. of Suffolk, 52 F.3d 1139, 1152 n. 11 (2d Cir.1995). The plaintiff bears the burden of showing that the summons and complaint were served upon the defendant on a certain date. O'Brien v. R.J. O'Brien & Assocs., 998 F.2d 1394, 1398 (7th Cir. 1993). Judgment cannot be rendered against a defendant unless the defendant has been served with process or has otherwise appeared or waived service of process. Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).

         In order to properly resolve a plaintiff's motion, the Court must determine: (1) whether default judgment is procedurally proper; (3) whether the plaintiff's complaint sufficiently sets forth facts establishing that it is entitled to relief; and (3) whether the requested relief is appropriate. United States v. Giles¸538 F.Supp.2d 990, 993 (W.D. Tex. 2008). After a default judgment, the plaintiff's well-pleaded factual allegations are taken as true. U.S. for Use of M-Co Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987).


         Plaintiffs allege several claims against Defendant, including two violations of the Lanham Act (False Endorsement and False Advertising), Texas common law right to privacy, Texas common law defamation, and negligence. Plaintiffs have sufficiently set forth facts entitling them to relief. Pl.'s Mot. for Entry of Default J., Ex. A-J. Additionally, because Defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true. See Shipco Gen, 814 F.2d at 1014; see also 14D Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. § 2688.1 (4th ed.). Therefore, the Court accepts the well-pleaded factual allegations in Plaintiffs' Complaint against Defendant A-Q-B, LLC.

         Additionally, default judgment is procedurally warranted in this case. Defendant has been properly served and has failed to file an answer. The District Clerk's office filed an entry of default on October 30, 2019. ECF No. 14. Defendants have failed to respond to Plaintiff's Motion for Entry of Default Judgment or defend this case. Moreover, Plaintiff has submitted an affidavit showing that Defendant was properly severed. ECF No. 13, Ex. A. There is no indication that defendant's failure to respond is the result of a good faith mistake or excusable neglect. Nor is there anything before the Court that would oblige it to set aside a default. Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998). Finally, Plaintiffs have alleged sufficient facts to support each of the causes of action Plaintiffs allege against ...

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