-M- Entertainment & Consultant Service, Inc. v. LOC Marketing, LLC et al

Filing 15

ORDER Granting 14 Request for Entry of Default, but Denying Motion for Entry of Default Judgment. Entry of Default to be entered by separate document. (Signed by Judge Melinda Harmon) Parties notified.(rvazquez)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
-M— ENTERTAINMENT & CONSULTANT
SERVICE, INC.,

§
§
§
Plaintiff,
§
§
VS.
§
§
LOC MARKETING, LLC; LAMONT
§
WANZER; DONTAY JACKSON; ANN VO §
d/b/a LIVE HOUSTON; AYVA CENTER,§
LLC; AND WONGSON INVESTMENT CO.,§
§
Defendants.
§

CIVIL ACTION NO. H-13-0952

OPINION AND ORDER
Pending before the Court in the above referenced cause for
infringement of federally registered trademarks,1 false designation
of origin, and trademark dilution is Plaintiff -M— Entertainment &
Consultant Service, Inc.’s request for entry of default and request
for entry of default judgment under Federal Rule of Civil Procedure
55 against Defendants LOC Marketing, LLC, Lamont Wanzer, and Dontay
Jackson (instrument #14).2
While Plaintiff has shown that it is entitled to entry of
default against these three Defendants, Plaintiff’s complaint does
not state whether Defendants are jointly and severally liable,
explain why it seeks a final default judgment against three
1

MAGIC CITY (U.S. Reg. No. 1,852,679) and MAGIC CITY &
Design (U.S. Reg. No. 3,940,609).
2

The Court observes that Anna Vo (#5) and the Ayva Center,
LLC (#6) have filed responses.
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Defendants while claims are still pending against two others, does
not show the Court why there is no just reason for delay for
purposes of Federal Rule of Civil Procedure 54(b), does not provide
a sum certain in damages nor demonstrate how one can be computed
nor request a hearing to determine such, and fails to submit
adequate documentation supporting the claim for attorneys’ fees,
which would also relate to legal services against the two remaining
defendants if Plaintiff prevails against them.
Where defendants are jointly and severally liable and a
default

judgment

is

sought

against

judgments should not be entered
until

the

matter

defendants.”

has

been

fewer

than

all,

“default

against the defaulting defendant
adjudicated

with

regard

to

all

In re First T.D. & Investment, Inc., 253 F.3d 520,

532 (9th Cir. 2001), citing Frow v. De La Vega, 15 Wall. 552, 82
U.S. 552, 1872 WL 15275 (1872)(“[A] final decree on the merits
against the defaulting defendant alone, pending the continuance of
the cause, would be incongruous and illegal.”). “[W]hen defendants
are similarly situated, but not jointly liable, judgment should not
be entered against a defaulting defendant if the other defendant
prevails on the merits,” given the prohibition against logically
inconsistent judgments.

See also Centimark Corp. v. A to Z

Coatings & Sons, Inc., No. 08-10359, 2007 WL 44557247, at *2 (M.D.
Fla.

Dec.

21,

2007),

aff’d,

288

Fed.

Appx.

610

(11th

Cir.

2008)(“This prohibition against logically inconsistent judgments

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does not apply only to cases where liability is deemed to be joint.
In this circuit, it is ‘sound policy’ that when defendants are
similarly situated, but not jointly liable, judgment should not be
entered against a defaulting defendant if the other defendant
prevails on the merits.”

If Plaintiff thinks that injunctive

relief is immediately necessary, it can move for a preliminary
injunction, but the Court notes that it has waited nearly a year
after the three defaulted to file the instant motion.
Accordingly, the Court
ORDERS that Plaintiff’s request for entry of default against
Defendants LOC Marketing, LLC, Lamont Wanzer, and Dontay Jackson is
GRANTED, but its motion for entry of default judgment is currently
DENIED without prejudice.
SIGNED at Houston, Texas, this

24th

day of

March , 2014.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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