J&J Sports Productions, Inc. v. Elsner-Gomez
ORDER AND REASONS GRANTING 17 Motion for Summary Judgment. A motion for reconsideration of this Order and Reasons based on the appropriate Federal Rule of Civil Procedure, if any, must be filed within fourteen (14) days of this Order and Reason s. If Defendant does not file a motion for reconsideration within fourteen (14) days, judgment will be entered against Defendant in the amount of twenty thousand dollars ($20,000.00), per the terms of the consent judgment agreed to by the parties, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 5/10/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J&J SPORTS PRODUCTIONS, INC.
MARIA ELSNER-GOMEZ D/B/A
DAIQUIRI ISLAND SPORTS
BAR AND GRILL
ORDER AND REASONS
Plaintiff filed a “Motion for Summary Judgment Seeking to
Enforce Compromise and Settlement.” Rec. Doc. 17. Defendant did
not file an opposition. For the reasons discussed below,
IT IS ORDERED that the motion (Rec. Doc. 17) is GRANTED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In August 2016, Plaintiff J&J Sports Productions, Inc. sued
Defendant Maria Elsner-Gomez d/b/a Daiquiri Island Sports Bar &
Grill for allegedly violating various federal laws by showing a
commercial license. See Rec. Doc. 1 ¶¶ 15-23. In April 2017,
Plaintiff notified the Court that the parties had reached a
settlement and that performance under the settlement agreement
would not be completed for at least twenty-four months. See Rec.
Doc. 15. Accordingly, the Court entered an order dismissing the
case without prejudice, but retaining jurisdiction to enforce the
settlement agreement for a reasonable period of time, not to exceed
twenty-four months. See Rec. Doc. 16.
In January 2018, Plaintiff filed the instant motion to enforce
the settlement agreement. See Rec. Doc. 17. Plaintiff argues that
Defendant violated the settlement agreement via a cross-default
provision by failing to make a required payment under a related
settlement agreement. See Rec. Doc. 17-1 at 2-3. Plaintiff argues
that, because Defendant violated the settlement agreement, the
Court should enter a consent judgment that the parties agreed to
during settlement negotiations. See Rec. Doc. 17 at 1-2. Plaintiff
attached two sets of documents to its motion. The first set of
documents is an email conversation between counsel for Plaintiff
and counsel for Defendant in which counsel reach agreement on the
settlement terms. See Rec. Docs. 17-6 to 17-11; 17-14 to 17-16.
The second set of documents includes an unsigned copy of the
settlement agreement and consent judgment. See Rec. Docs. 17-12;
LAW AND ANALYSIS
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“demonstrate the absence of a genuine issue of material fact” using
competent summary judgment evidence. Celotex, 477 U.S. at 323. But
“where the non-movant bears the burden of proof at trial, the
movant may merely point to an absence of evidence.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Even when
a motion for summary judgment is unopposed, the movant must still
carry its burden of showing that there is no genuine issue of
material fact. See Hibernia Nat’l Bank v. Administracion Cent.
Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). When the
movant meets its burden, the burden shifts to the non-movant, who
must show by “competent summary judgment evidence” that there is
a genuine issue of material fact. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Lindsey, 16
F.3d at 618.
Plaintiff has met its burden because it has provided multiple
pieces of evidence confirming that the parties firmly reached a
compromise and that Defendant has violated the terms of that
compromise; no genuine issue of material fact exists. Plaintiff
attached a copy of the settlement agreement to the motion for
summary judgment. See Rec. Doc. 17-12. The agreement states, inter
alia, that Defendant “agrees to a consent judgment for the sum of
Twenty Thousand and 00/100 ($20,000) Dollars, without interest,”
if Defendant “should fail to perform under the settlement” in a
related case. Id. at 2 (referring to the settlement agreement in
“J&J Sports Productions, Inc. v. Montgomery Norton, Inc. et al
(No. 2:15-CV-04387[)]”). Defendant has failed to perform under the
related settlement agreement. See J&J Sports Prods., Inc. v.
Montgomery Norton, Inc., et al., No. 15-4387, Rec. Doc. 44 (E.D.
La. Apr. 18, 2018) (granting in part plaintiff’s motion for summary
judgment to enforce settlement agreement because defendant failed
to make required payments). Therefore, Defendant is also in default
judgment . . . .” Rec. Doc. 17-12 at 2 (referring to Rec. Doc.
Plaintiff has also provided evidence of the parties’ firm
agreement to the terms of the settlement. For example, Plaintiff
notified the Court of settlement in April 2017 and indicated that
settlement was related to another case pending in this Court. See
Plaintiff’s counsel that he agreed with the notice. Rec. Doc. 17-9
counsel agreed that “[i]f default occurs under the first settlement
agreement [in the related case], the consent judgment related to
the [instant] matter immediately becomes executory . . . .” Rec.
Doc. 17-7 at 4. Finally, in defense counsel’s motion to withdrawn,
defense counsel represented that “[a] settlement in this matter
was agreed upon by both parties” and that “Plaintiff is entitled
to . . . seek summary judgment to enforce the settlement agreement”
because Defendant is in default. Rec. Doc. 18 at 2.
A motion for reconsideration of this Order and Reasons based
on the appropriate Federal Rule of Civil Procedure, if any, must
be filed within fourteen (14) days of this Order and Reasons. The
motion must be accompanied by an opposition memorandum to the
underlying motion for summary judgment (Rec. Doc. 17) and explain
why Defendant neither (1) filed a timely opposition to Plaintiff’s
motion for summary judgment (Rec. Doc. 17) nor (2) participated in
the telephone conference scheduled for May 10, 2018 (see Rec. Doc.
21). If Defendant does not file a motion for reconsideration within
fourteen (14) days, judgment will be entered against Defendant in
the amount of twenty thousand dollars ($20,000.00), per the terms
of the consent judgment agreed to by the parties. See Rec. Doc.
Because a motion for reconsideration would not have been
necessary had a timely opposition memorandum been filed, the costs
incurred in connection with the motion, including attorney's fees,
will be assessed against the party moving for reconsideration. See
Fed. R. Civ. P. 16, 83.
A statement of costs conforming to Local
Rule 54.3 shall be submitted by any party desiring to be awarded
costs and attorney's fees no later than eight (8) days prior to
the noticed submission date of the motion for reconsideration.
New Orleans, Louisiana, this 10th day of May, 2018.
SENIOR UNITED STATES DISTRICT JUDGE
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