J&J Sports Productions, Inc. v. Dao Thi Luu

Filing 51

Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER. For the foregoing reasons, the Defendants Motion to Vacate Default Judgment [ECF No.41] is ALLOWED.SO ORDERED.(Folan, Karen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
ANH DAO THI LUU,
d/b/a EL CORRAL RESTAURANT
a/k/a WINGS RESTAURANT,
Defendant.

Civil Action No. 14-cv-14336-ADB

MEMORANDUM AND ORDER
September 30, 2016
BURROUGHS, D.J.
This is a dispute involving the allegedly unauthorized broadcasting of the Manny
Pacquiao v. Juan Manuel Marquez, IV Welterweight Fight Program (the “Fight Program”), at a
restaurant located at 408 Broadway Street, Chelsea, Massachusetts (“408 Broadway Street”) on
December 8, 2012. Complaint (“Compl.”) [ECF No. 1]. Because of Anh Dao Thi Luu’s (the
“Defendant”) failure to appear or otherwise defend, this Court entered an order for default
judgment, upon J&J Productions, Inc.’s (the “Plaintiff”’) motion and after an entry of default, on
March 23, 2016 and assessed damages, costs, attorneys’ fees, and post-judgment interest in the
total amount of $7,831.37. [ECF No. 40].
On September 9, 2016, the Defendant filed a Motion to Vacate Default Judgment [ECF
No. 41], which was opposed by the Plaintiff [ECF No. 42] on September 15, 2016. Thereafter,
the Defendant filed a Request to File a Reply to Plaintiff’s Opposition [ECF No. 48]. A hearing

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was held on September 27, 2016. At the hearing, over Plaintiff’s objection, the Court allowed
Defendant’s request to file a reply [ECF No. 48]. For the reasons explained below, the
Defendant’s Motion to Vacate Default Judgment [ECF No. 41] is ALLOWED.
I.

Background
The Plaintiff, J&J Sports Productions, Inc., had acquired exclusive commercial rights to

broadcast the Fight Program. Compl. ¶ 9. It entered into sublicensing agreements with various
commercial entities that granted these entities limited sublicensing rights to publicly exhibit the
Fight Program. Compl. ¶ 10. The Complaint alleges that the Defendant herself or through
“agents, servants, workman or employees” showed the Fight Program on December 8, 2012 at
her commercial establishment at 408 Broadway Street without any authorization. Compl. ¶¶ 12,
13. The Complaint further alleges that, “upon information and belief, the Defendant resides at
408 Broadway Street, Chelsea, Massachusetts and is an owner, and/or operator, and/or licensee,
and/or permitee, and/or person in charge, and/or an individual with dominion, control, oversight
and management of the commercial establishment doing business as EL CORRAL
RESTAURANT aka WINGS RESTAURANT at 408 Broadway Street, Chelsea, Massachusetts.”
Compl. ¶ 7.
The Plaintiff first attempted to serve the Complaint by leaving a copy of the Summons,
Complaint, Cover Sheet, and Corporate Disclosure Statement at 408 Broadway Street, Chelsea,
Massachusetts with Silvia Sarano, a bartender, on April 6, 2016 and by sending copies by first
class mail to the same address on April 7, 2016. [ECF Nos. 7, 10]. The Court concluded that
service was not proper because the Defendant was being sued in her individual capacity but was
being served at her place of business. [ECF No. 14]. In late October 2015, Plaintiff again
attempted to execute service on the Defendant at her last known residence, 221 Central Avenue,

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Apt #1, Chelsea, Massachusetts. [ECF Nos. 19, 22]. The Defendant acknowledges receipt of the
documents, but explains that she and her husband were confused given that they had sold the
business, had limited English, and were unfamiliar with the U.S. legal system. See Anh Dao Thi
Luu Affidavit (“Luu Aff.”) [ECF No. 41-1 ¶ 9]; see also [ECF No. 41 at 3]. She never answered
or appeared in any capacity in this case. Default judgment against the Defendant was entered on
March 23, 2016. [ECF No. 40].  
II.

Legal Standard
Once a default judgment has been entered, relief must be sought under Rule 60(b). See

Fed. R. Civ. P. 55(c). The Rule 60(b) standard for setting aside entries of default judgment is less
liberal than the “good cause” standard for setting aside entries of default. See United States v.
$23,000 in U.S. Currency, 356 F.3d 157, 164 (1st Cir. 2004) (discussing Fed. R. Civ. P. 55(c)).
In this case, the Defendant argues that the default judgment should be vacated under Rule
60(b)(1), which provides, in pertinent part, that “[o]n motion and just terms, the court may
relieve a party or its legal representative from a final judgment . . . [for] (1) mistake,
inadvertence, surprise or excusable neglect.” See Fed. R. Civ. P. 60(b)(1).
A motion under Rule 60(b)(1) must be brought within one year of entry of judgment. See
Fed. R. Civ. P. 60(c)(1); see also Blanchard v. Cortes-Molina, 453 F.3d 40, 44 (1st Cir. 2006).
Furthermore, Rule 60(b)(1) “requires a showing of ‘excusable neglect’ to win relief from a final
judgment.” $23,000 in U.S. Currency, 356 F.3d at 164; see also Aguiar-Carrasquillo v. AgostoAlicea, 445 F.3d 19, 28 (1st Cir. 2006) (“excusable neglect” is a “fairly flexible concept that
encompasses ‘inadvertence, mistake, or carelessness, as well as by intervening circumstances
beyond the party’s control.’”) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd., 507
U.S. 380, 388 (1993)). “Our evaluation of what constitutes excusable neglect is an equitable

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determination, taking into account the entire facts and circumstances surrounding the party’s
omission, including factors such as the danger of prejudice to the non-movant, the length of the
delay, the reason for the delay, and whether the movant acted in good faith.” Davila-Alvarez v.
Escuela de Medicina Universidad Cent. del Caribe, 257 F.3d 58, 64 (1st Cir. 2001). At bottom,
however, the determination is an equitable one, and the critical factor is the reason for the
movant’s neglect and whether it excuses the neglect. Nansamba v. N. Shore Med. Ctr., Inc., 727
F.3d 33, 38–39 (1st Cir. 2013).
Although the First Circuit has taken a somewhat “harsher tack” than other circuits,
Davila-Alvarez, 257 F.3d at 64 (internal quotation marks omitted), district courts nonetheless
have “wide discretion in deciding Rule 60(b) motions,” Claremont Flock Corp. v. Alm, 281 F.3d
297, 299 (1st Cir. 2002). Further, legal policy favors resolving a case on the merits. See Am.
Metals Serv. Exp. Co. v. Ahrens Aircraft, Inc., 666 F.2d 718, 720 (1st Cir. 1989). When deciding
whether to vacate a default judgment, the court must balance “the importance of finality in
litigation against the desirability of deciding cases on the merits.” Ungar v. Palestine Liberation
Org., 599 F.3d 79, 83 (1st Cir. 2010). Accordingly, to obtain relief under Rule 60(b), the movant
must also show that a meritorious defense exists. See United States v. Proceeds of Sale of 3,888
Pounds Atl. Sea Scallops, 857 F.2d 46, 48 (1st Cir. 1988).
III.

Discussion
The Defendant argues that, under Rule 60(b)(1), the default judgment should be vacated

because there was good reason for the default, the Plaintiff would not be prejudiced, and the
Defendant has a meritorious defense, namely that she had sold the business and was no longer
involved at the time of the broadcast of the Fight Program. [ECF No. 41]. The Plaintiff responds
that the default judgment should not be set aside because the Defendant has failed to provide a

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good reason to vacate and does not have a plausible defense. [ECF No. 42]. Specifically, the
Plaintiff argues that service was properly executed and that it was sufficiently clear on the face of
the summons that the person named, the Defendant, had to respond to the complaint. [ECF No.
42 at 5]. The Plaintiff also claims that the Defendant remained involved in the business at 408
Broadway Street as a licensee of record for liquor sales and as a director of the Wings El Corral,
Inc., subsequent to the business being sold. See [ECF No. 42 at 2, 7]; see also Affidavit in
Support of Opposition to Motion to Vacate Default Judgment [ECF No. 43, Exs. A–C].
The Court finds that the Defendant’s default in this case was the result of excusable
neglect. First, the Court finds that the Defendant’s effort to vacate the default judgment is timely
as the Defendant filed the present motion within six months of entry of the default judgment. See
Claremont Flock, 281 F.3d at 300. Second, the Court credits the Defendant’s explanation of the
reasons for the default, and finds that the circumstances of this case warrant vacating the default
and allowing the Defendant to defend the case on its merits. The Complaint and Corporate
Disclosure Statement that were served on the Defendant list the following defendant: “Anh Dao
Thi Luu, dba El Corral Restaurant aka Wings Restaurant.” [ECF Nos. 1, 2, 7]. Thus, although
she received court papers in her name, the papers referenced a business entity that she no longer
owned and an event that took place at the restaurant after she had already sold it. Even then,
rather than simply ignore the summons, the Defendant claims that, when she received it in
October 2015, she passed it along to the actual owners of the business at 408 Broadway Street.
See Luu Aff. ¶ 9. Further, the Defendant asserts that her and her husband’s English language
abilities and knowledge of the U.S. legal system were limited. See Luu Aff. ¶ 9; see also [ECF
No. 41 at 3]. There is also no evidence of bad faith on the part of the Defendant, and it is not

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apparent how the Plaintiff would be prejudiced, beyond having to prove its case at trial, if the
default judgment is vacated.
Lastly, and perhaps most significantly, the Defendant has a plausible defense as there is
evidence she was no longer the owner or in control of the business at the time that it allegedly
broadcast the Fight Program. The Defendant claims that she sold the business located at 408
Broadway Street on October 15, 2012. [ECF No. 41 at 1]. She includes with her Reply a copy of
the sale agreement, executed by herself and Jose Eliseo Pineda Recinos. [ECF No. 48-1]. She
also states in her affidavit that she “signed over management, control and ownership of the
restaurant located at 408 Broadway . . . in October 2012.” Luu Aff. ¶ 8. The Defendant
represents that, since the sale, she has had no involvement with the business. [ECF No. 41 at 1–
2]. The Plaintiff counters that the Defendant’s disavowal of any connection to the business at the
relevant time is belied by the fact that the Defendant’s name remained on the liquor license well
beyond the date of the sale of the business, and there are other indications as well that the
Defendant may have played an ongoing role in the business following the sale. Nonetheless, the
affidavits coupled with the sale agreement “plausibly suggest the existence of facts which, if
proven at trial, would constitute a cognizable defense.” Indigo Am., Inc. v. Big Impressions,
LLC, 597 F.3d 1, 4 (1st Cir. 2010) (discussing meritorious defense inquiry in context of setting
aside entry of default).
Given the timeliness of the effort to vacate the default, the lack of bad faith or prejudice,
the circumstances of the default, and the real possibility of a meritorious defense, the Court finds
that the Defendant has met its burden under Rule 60(b). The default will be vacated.

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IV.

Conclusion
For the foregoing reasons, the Defendant’s Motion to Vacate Default Judgment [ECF No.

41] is ALLOWED.
SO ORDERED.
Dated: September 30, 2015
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE

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