J&J Sports Productions, Inc. v. Bundee's, Inc., et al

Filing 42

ORDER granting 36 Rule 55(c) Motion to Set Aside Clerk's Entry of Default and Rule 12(b)(5) Motion to Quash Service of Process. IT IS FURTHER ORDERED that on or before December 9, 2019, plaintiff's counsel is instructed to file proof of service on defendant Gerald K. Sayles, or show good cause, in writing, why service of process has not been effectuated, or Gerald K. Sayles will be dismissed for failure to prosecute. Failure to comply with this order may result in dismissal without further notice. Signed by Judge Greg Gerard Guidry on 10/11/2019. (mm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
J&J SPORTS PRODUCTIONS, INC.

CIVIL ACTION

VERSUS

NO: 18-03480

BUNDEE’S, INC. d/b/a CLUB
CONTINENTAL and GERALD K.
SAYLES

SECTION: T(1)

ORDER
Before the Court is a Rule 55(c) Motion to Set Aside Clerk’s Entry of Default and Rule
12(b)(5) Motion to Quash Service of Process1 filed by defendant Gerald K. Sayles (“Sayles”). J&J
Sports Productions, Inc. (“Plaintiff”) has filed a response memorandum. 2 For the following
reasons, the Rule 55(c) Motion to Set Aside Clerk’s Entry of Default and Rule 12(b)(5) Motion to
Quash Service of Process3 is GRANTED.
BACKGROUND
Plaintiff owned the exclusive rights to the closed-circuit television event, “The Fight of the
Century Floyd Mayweather, Jr. v. Manny Pacquiao Championship Fight Program” (the
“Program”). 4 Plaintiff alleges Bundee’s, Inc. d/b/a Club Continental (“Club Continental”)
unlawfully broadcast the Program on May 2, 2015.5 Sayles was allegedly an owner and operator
of the business premises doing business as Club Continental.6 On April 2, 2018, Plaintiff filed suit
seeking statutory damages and attorneys’ fees pursuant to 47 U.S.C. § 605, which prohibits the
interception and publishing of radio communications; 47 U.S.C. § 553(c), which prohibits the

1

R. Doc. 36.
R. Doc. 40.
3
R. Doc. 36.
4
R. Doc. 1, ¶18.
5
R. Doc. 1, ¶12.
6
R. Doc. 1, ¶4.
2

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interception of communications over a cable system; and 18 U.S.C. §§ 2511, 2520, which prohibit
the interception of electronic communications.7
On October 9, 2018, a summons return was filed into the record indicating that Sayles was
served on June 2, 2018 at 5842 Louis Prima Drive West, New Orleans, LA 70128.8 The summons
was left “at the individual’s residence or usual place of abode with (name) David unknown last
name, a person of suitable age and discretion who resides there, on (date) 6/2/18.”9 On January 15,
2019, the Clerk of Court granted Plaintiff’s motion for entry of default as to Sayles. 10 Sayles now
moves to set aside the default and to quash the summons contending that service was improper
because he no longer resides at 5842 Louis Prima Drive West, New Orleans, LA 70128.11
LAW AND ANALYSIS
A. Motion to Set Aside Entry of Default
Rule 55(c) of the Federal Rules of Civil Procedure provides that the court may set aside an
entry of default for good cause. To determine whether good cause to set aside a default exists, the
court considers four factors: (1) whether the default was willful, (2) whether setting it aside would
prejudice the adversary, (3) whether a meritorious defense is presented, and (4) whether the
defendant acted expeditiously to correct the default.12 A finding of willful default ends the inquiry,
for “when the court finds an intentional failure of responsive pleadings there need be no other
finding.”13 Additionally, there is a strong policy in favor of decisions on the merits, and default
judgments are disfavored.14

7

R. Doc. 1.
R. Doc. 12.
9
R. Doc. 12.
10
R. Doc. 21.
11
R. Doc. 36.
12
Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000).
13
Lacy, 227 F.3d at 292 (quoting Matter of Dierschke, 975 F.2d 181, 184 (5th Cir.1992)
14
Lindsey v. Prive Corp., 161 F.3d 866, 893 (5th Cir. 1998); Harper Macleod, 260 F.3d 389, 393 (5th Cir. 2001).
8

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The Court finds good cause for setting aside the entry of default in this case because the
service on Sayles was improper under Rule 4.15 Rule 4(e)(2)(B) provides that a person may be
served by leaving a copy of the summons at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there. 16 Sayles was served by domiciliary
service at 5842 Louis Prima Drive West, New Orleans, LA 70128 on June 2, 2018. 17 Sayles
represents he sold the home located at 5842 Louis Prima Drive West, New Orleans, LA 70128 on
July 31, 2015 and attaches a certified copy of the act of sale.18 Plaintiff does not know of any facts
to refute that Sayles did not live at that address at the time of service.19 Because the address where
the summons was delivered is not Sayles’s dwelling or usual place of abode, the delivery of the
summons to “David unknown last name” at 5842 Louis Prima Drive West, New Orleans, LA
70128 is insufficient service of process.
Because Sayles was not properly served under Rule 4, the Court finds that the default was
not willful, setting aside the default would not prejudice the Plaintiff, and a meritorious defense
has been presented. Additionally, Sayles acted expeditiously to correct the entry of default by filing
the motion to set aside the default before default judgment was entered. The Court, therefore, finds
that there is good cause for setting aside the entry of default under Rule 55(c).
B. Motion to Quash Service of Process
Under Rule 12(b)(5), the Court has discretion to either dismiss the plaintiff’s complaint for
failure to effect service or to quash the service of process if the Court determines the defendant
was not properly served.20 Sayles has requested the Court quash the service of process. Because

15

Fed. R. Civ. P. 4.
Fed. R. Civ. P. 4(e).
17
R. Doc. 36.
18
R. Doc. 36-2, recorded in the Orleans Parish Conveyance Records as instrument number 2015-33001.
19
R. Doc. 40.
20
Fed. R. Civ. P. 12(b)(5); See also Francis v. Dupree, 2011 WL 3818955, at *2 (E.D. La. July 29, 2011), report
and recommendation adopted in part, 2011 WL 3820076 (E.D. La. Aug. 25, 2011).
16

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the Court has determined that service on Sayles was improper under Rule 4, the Court will quash
the service of process.
CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that the Rule 55(c) Motion to
Set Aside Clerk’s Entry of Default and Rule 12(b)(5) Motion to Quash Service of Process 21 are
GRANTED.
IT IS FURTHER ORDERED that on or before December 9, 2019, plaintiff’s counsel is
instructed to file proof of service on defendant Gerald K. Sayles, or show good cause, in writing,
why service of process has not been effectuated, or Gerald K. Sayles will be dismissed for failure
to prosecute. Failure to comply with this order may result in dismissal without further notice.
New Orleans, Louisiana, on this 11th day of October, 2019.
_____

GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE

21

R. Doc. 36.

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