United States District Court, W.D. Texas, Waco Division
ANDRA CHERI MORELAND, BRENDA GEIGER, JESSICA KILLINGS, CLAUDIA SAMPEDRO, JESSICA BURCIAGA, KEELEY HAZELL, PAOLA CANAS, VIDA GUERRA, Plaintiffs,
A-Q-B, LLC, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT
ALBRIGHT, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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).
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).
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).
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).
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
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