J&J Sports Productions Inc v. Serrano et al

Filing 13

ORDER denying 11 Motion for Default Judgment. Signed by Honorable Timothy D. DeGiusti on 5/8/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
FRANCISCO SERRANO, individually
and d/b/a Club Gallo DE ORO,
Defendant.

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Case No. CIV-16-1021-D

ORDER
Plaintiff brings this action, alleging it held the exclusive nationwide television
distribution rights to the “Mayhem”: Floyd Mayweather, Jr. v. Marcos Rene
Maidana, II, WBC World Lightweight Championship Fight Program, telecast on
Saturday, September 13, 2014, and Defendant unlawfully broadcasted the program
at its Oklahoma City location. Plaintiff was granted leave to serve Defendant by
publication [Doc. No. 7] and Defendant failed to answer or otherwise respond to the
Complaint. On February 1, 2017, the Court Clerk entered default against Defendant
[Doc. No. 10]. Before the Court is Plaintiff’s Motion for Default Judgment [Doc.
No. 11]. Defendant has not responded to the Motion.

A procedural requirement for the grant of default judgment by the Court1 is
that the motion be accompanied by an affidavit in compliance with LCvR 55.1,
which states that “[n]o application for a default judgment shall be entertained absent
an affidavit in compliance with the Servicemembers Civil Relief Act, [50 U.S.C. §
3931].” In this regard, the Act provides:
In any action or proceeding covered by this section, the court, before
entering judgment for the plaintiff, shall require the plaintiff to file with
the court an affidavit(A) stating whether or not the defendant is in military service and
showing necessary facts to support the affidavit; or
(B) if the plaintiff is unable to determine whether or not the
defendant is in military service, stating that the plaintiff is unable
to determine whether or not the defendant is in military service.
50 U.S.C. § 3931(b)(emphasis added). The affidavit submitted by Plaintiff’s counsel
states that “Defendant is not believed to be an infant, incompetent person, or person
in military service or otherwise exempted from default judgment under the Soldiers’
and Sailors’ Civil Relief Act of 1940.” See Decl. in Support of Pl. Mot. for Entry of
Default by Clerk, ¶ 5 [Doc. No. 9-1]; see also Mot. for Default Judgment, ¶ 3(a).

1

When a defendant fails to answer or otherwise defend against an action, Rule 55
of the Federal Rules of Civil Procedure provides two distinct sequential steps: the
entry of default and the entry of default judgment. See Fed. R. Civ. P. 55(a), (b);
Guttman v. Silverberg, 167 F. App’x 1, 2 n. 1 (10th Cir. 2005) (unpublished) (“The
entry of default and the entry of a judgment by default are two separate
procedures.”). Initially, a party must ask the Clerk of the Court to enter default. Fed.
R. Civ. P. 55(a). Only when the Clerk has complied may a party seek default
judgment. Garrett v. Seymour, 217 F. App’x 835, 838 (10th Cir. 2007) (unpublished)
(holding that entry of default is a prerequisite for the entry of a default judgment
under Rule 55(b)(1)).
2

Plaintiff, however, offers no documentation or other evidence supporting this
assertion as required by the statute. Consequently, the affidavit is inadequate because
it does not show necessary facts to support Plaintiff’s belief that Defendant is not in
military service. See Premier Fin. Servs., LLC v. Morris, No. CV-09-00947, 2010
WL 3342002, at *1 (D. Ariz. Aug. 25, 2010) (“Because the [Servicemembers Civil
Relief Act] requires that ‘facts must be set forth, an affidavit made upon information
and belief is insufficient’ to satisfy the statute’s affidavit requirement.”) (quoting
United States v. Simmons, 508 F.Supp. 552, 552 n. 1 (E.D. Tenn. 1980) (further
citations omitted)).2
Accordingly, because Plaintiff has failed to establish necessary facts to
support counsel’s affidavit, Plaintiff’s Motion for Default Judgment [Doc. No. 11]
is DENIED without prejudice to refiling.
IT IS SO ORDERED this 8th day of May 2017.

2

Compare UMG Recordings, Inc. v. Morgan, CIV-06-545, 2006 WL 3626752, at
*2 (W.D. Okla. Oct. 18, 2006) (granting motion for default judgment where
“[p]laintiffs submitted the affidavit [stating] that a search of available public
databases indicates that Defendant is not in the military service.”); Fonovisa, Inc. v.
Villasana, No. Civ.A. 05-CV-539, 2005 WL 3274560, at *1 (D. Colo. Sept. 6, 2005)
(granting motion for default judgment where “[p]laintiffs have tendered an affidavit
averting that ... a search in the U.S. Military Locator database of LexisNexis
indicates that Defendant is not in military service”).
3