Ariza v. Agent Provocateur International (US) LLC
Filing
20
ORDER VACATING DEFAULT FINAL JUDGMENT AND DISMISSING CASE. Denying as moot 12 Motion for Bill of Costs and 13 Motion for Attorney Fees; granting 19 Motion to Set Aside Default. The Clerk of Court is directed to CLOSE this case. Signed by Judge Beth Bloom on 6/4/2021. See attached document for full details. (ail)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-20931-BLOOM
VICTOR ARIZA,
Plaintiff,
v.
AGENT PROVOCATEUR
INTERNATIONAL (US) LLC, a foreign
limited liability company,
Defendant.
____________________________________/
ORDER VACATING DEFAULT FINAL JUDGMENT AND DISMISSING CASE
THIS CAUSE is before the Court upon Defendant Agent Provocateur International (US)
LLC’s (“Defendant”) Agreed Motion to Set Aside Default Final Judgment, ECF No. [19]
(“Motion”), filed on June 4, 2021. Plaintiff Victor Ariza (“Plaintiff”) filed this action against
Defendant on March 9, 2021, alleging that Defendant’s website violates the Americans with
Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”). ECF No. [1] (“Complaint”). When Defendant
failed to timely file an answer or response to the Complaint, the Clerk of Court entered Default on
April 5, 2021. ECF No. [9]. On April 13, 2021, the Court entered a Default Final Judgment against
Defendant, which granted injunctive relief requiring Defendant to make changes to the website.
ECF No. [11]. Defendant has now appeared in this action and files the instant Motion seeking to
set aside the Default Final Judgment because Defendant does not own, control, or operate the
website at issue. After the Default Final Judgment was issued, Plaintiff learned that the website at
issue was owned, controlled, and operated by another entity, Agent Provocateur International, Ltd.
As such, Plaintiff agrees to the relief requested in the Motion. Upon review, the Motion is granted.
Case No. 21-cv-20931-BLOOM
Pursuant to Federal Rule of Civil Procedure Rule 60, courts may grant relief from a final
judgment or order based upon a variety of specifically enumerated reasons. See Fed. R. Civ. P.
60(b). Relevant here, Rule 60(b)(5) provides that a court may relieve a party from a final judgment
where “applying it prospectively is no longer equitable[.]” Fed. R. Civ. P. 60(b)(5). Under Rule
60(b)(5), a party seeking relief from judgment “bears the burden of establishing that a significant
change in circumstances warrants revision of the decree. . . . A party seeking modification of a
consent decree may meet its initial burden by showing either a significant change either in factual
conditions or in law.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 383-84 (1992); see also
Horne v. Flores, 557 U.S. 433, 447 (2009). Here, as the parties correctly note, the continuing
validity of an injunction that requires Defendant to make certain modifications to a website it
neither owns nor controls is in question. Accordingly, the Court finds that the circumstances here
warrant vacating the Default Final Judgment against Defendant pursuant to Rule 60(b)(5).
Moreover, Plaintiff’s pending Application for Attorney’s Fees, Costs and Expert Expenses, ECF
Nos. [12] & [13], is due to be denied as moot.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion, ECF No. [19], is GRANTED.
2. The Default Final Judgment, ECF No. [11], is VACATED.
3. The above-styled case against Defendant Agent Provocateur International (US)
LLC is DISMISSED WITHOUT PREJUDICE.
4. Plaintiff’s Application for Attorney’s Fees, Costs and Expert Expenses, ECF Nos.
[12] & [13], is DENIED AS MOOT.
5. The Clerk of Court is directed to CLOSE this case.
2
Case No. 21-cv-20931-BLOOM
6. To the extent not otherwise disposed of, all pending motions are DENIED AS
MOOT and all deadlines are TERMINATED.
DONE AND ORDERED in Chambers at Miami, Florida, on June 4, 2021.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?