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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMIL SHARIF * CIVIL ACTION NO: 2:10-CV00970
*
VERSUS * SECTION: “N”
*
DECATUR HOTELS, L.L.C. * MAGISTRATE: 2
dba NEW ORLEANS FINE HOTELS *
* * * * * * * * * * * * * * * * * * * * * * *
____________________________________________________________________
PLAINTIFF‟S MEMORANDUM IN OPPOSITION OF MOTION TO SET ASIDE
DEFAULT JUGEMENT
MAY IT PLEASE THE COURT: Plaintiff, Jamil Sharif, through undersigned
counsel respectfully submits this Memorandum in Opposition to Defendant Decatur
Hotels, LLC‟s Motion to Set Aside Default Judgment.
I. Facts and Allegations
Jamil Sharif (“Sharif”), plaintiff, is domiciled in Orleans Parish, Louisiana, at
14030 Kings Wood Dr., New Orleans, Louisiana 70128. Upon information and belief,
Decatur Hotels, LLC d/b/a New Orleans Fine Hotels (“Hotels”) is a Louisiana LLC,
having a registered office for the business located at 301 Magazine Street New Orleans,
Louisiana 70130 and has in the past and continues to do business in New Orleans, LA.
Upon information and belief, Defendant, Hotels, downloaded a copy of Plaintiff‟s
image from the internet and used Plaintiff‟s image, in advertisements in various medias,
to promote their eight (8) New Orleans Hotels. Defendant Hotels have knowingly
engaged in a campaign to commit acts of unfair trade practices and unfair competition by
the unauthorized appropriation of Plaintiff‟s image and the good-will associated
therewith, all which are proprietary to Plaintiff as set forth herein, to the commercial
Case 2:10-cv-00970-JCZ-SS Document 32 Filed 06/07/11 Page 1 of 14

gain, personal profit, and unjust enrichment of the Defendant, and the irreparable injury
and financial loss of Plaintiff.
II. Response to part A of the Memo in Support of Motion to Set Aside Default
Judgment, 60(b)4, the judgment is “void” for improper service
A. Service was perfected on the Defendant
Decatur Hotels claims the Default Judgment against it should be set aside because
of imperfect service on the Defendant as defined by Rule 60(b)4. However, Decatur was
served on July 27, 2010. Proof of Service was filed August 24, 2010 with this Court (See
Defendant‟s Document No: 13). Opposing counsel‟s arguments not on the merits are
procedural arguments that attack the Plaintiff‟s service of process, which was perfected in
this Court.
The Defendant argues that the Plaintiff should have served the Defendant with a
waiver of service, and that the Plaintiff didn‟t attempt to serve said waiver under FRCP
4(h)(1)(b), neither of which matter, because neither of which are required of the Plaintiff.
Defendant alleges that the Plaintiff intentionally didn‟t serve Scott Day at Decatur‟s
corporate headquarters of 301 Magazine Street, (See Footnote 13 of the Memorandum in
Support of the Motion to Set Aside Default Judgment), which is untrue. Service was
attempted at Mr. Day‟s location at the 301 Magazine Street address May 17, 2010 and
May 24, 2010, both. (See Defendant Exhibit “D-11”, Affidavit of Scott Erwin, Service on
Edwin Palmer).
Plaintiff, on July 27, 2010, notified Defendant of the Complaint by personal
service on Stacey Rico, General Manager of the St. James Hotel, located at 330 Magazine
Street, one of the eight (8) hotels owned by Decatur Hotels, LLC, abiding by Louisiana
Civil Procedure 1266, and FRCP 4. FRCP Rule 4(e)1 which states:

Unless federal law provides otherwise, an individual — other than a
minor, an incompetent person, or a person whose waiver has been
filed — may be served in a judicial district of the United States by:(1)
following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or (2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual‟s dwelling or usual place
of abode with someone of suitable age and discretion who resides
there; or
(C) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.
Previously, on July 14, 2010, Plaintiff requested an Extension of Time to Serve
the Defendant so that the Plaintiff could serve the Louisiana secretary of State, who
would serve Defendant. The Defendant‟s address listed with the Louisiana Secretary of
State is 301 (Registered Office) and 317 Magazine Street (Plaintiff‟s Exhibit “F”). 317
Magazine Street is an empty building (Defendant Exhibit “D-13”, Affidavit of Claudia
O‟Dell). Louisiana Civil Procedure Article 1262 states that after an attempt at service by
the Secretary of State, service is perfected when the Secretary of State sends the citation
to the corporation‟s last known address.
Art. 1262. Same; Secretary of State
If the officer making service certifies that he is unable, after diligent
effort, to have service made as provided in Article 1261, then the
service may be made personally on the secretary of state, or on a
person in his office designated to receive service of process on
corporations. The secretary of state shall forward this citation to the
corporation at its last known address.
FRCP 4(I) states proof of service is by affidavit, unless the service was by U.S.
Marshall, which in this case it was attempted through U.S. Marshall on June 30, 2010, at
the 301 Magazine Street location, and at the agent‟s personal home address, 1124
Burgundy Street, on the same date (Exhibit “D-11”) as well as personally, to Ms. Stacey

Rico, on July 27 (Defendant Exhibit “13”). This Court attempted service on the
Defendant‟s agent Edwin Palmer, to no avail (Defendant Exhibit “12”).
Prior to serving Ms. Stacy Rico personally, Plaintiff made due and diligent
attempts to serve the Defendant‟s registered agent, Edwin M. Palmer and LLC member
Diane Palmer, by private process server, who was unable to serve either of them, at
multiple addresses, after multiple attempts (Defendant Exhibits “11” and “13”).
Plaintiff on August 24, 2010, filed proof of service with this court (Defendants
Document No: 13). The Defendant has yet to file an answer although their Motion to Set
Aside the Default Judgment was filed and supporting memorandum on April 21, 2011.
III. Response to part B of the Memo in Support of Motion to Set Aside Default
Judgment, 60(b)6, “void due to notice”
A. It was not the responsibility of Eveline, Davis & Phillips to notify Decatur
Hotels, L.L.C., that they had filed for a Default Judgment with this Court.
Decatur Hotels never appeared in the suit prior to the evidentiary hearing
awarding the Plaintiff Default Judgment. Decatur Hotels never appeared personally, or by
representative. Therefore, it was not the responsibility of Eveline, Davis & Phillips to
notify Decatur Hotels, L.L.C. that they had filed for a Default Judgment with this Court,
as the Defendant alleges in its Motion to Set Aside the Default Judgment. FRCP Rule 55
provides:
(1)
If the plaintiff's claim is for a sum certain or a sum that can be
made certain by computation, the clerk — on the plaintiff's
request, with an affidavit showing the amount due — must enter
judgment for that amount and costs against a defendant who has
been defaulted for not appearing and who is neither a minor nor
an incompetent person.
(2)
In all other cases, the party must apply to the court for a default
judgment. A default judgment may be entered against a minor or

incompetent person only if represented by a general guardian,
conservator, or other like fiduciary who has appeared. If the party
against whom a default judgment is sought has appeared
personally or by a representative, that party or its representative
must be served with written notice of the application at least 7
days before the hearing.
In this case, FRCP Rule 55 (1) and (2) contradict Defendant‟s assertion that the
Default Judgment should be “void due to notice”. The Court has entered a Default
Judgment against Decatur Hotels. A sum certain was presented to the Court in the form
of an evidentiary hearing, and a judgment was awarded based on a sum certain. Further,
Defendants failed to appear personally or by a representative.
The Defendant argues that Plaintiff was required to give the seven days notice
outlined in section 2, relying on the 1978 5th
Circuit case, Turner v. Salvatierra 580 F.2d
199 (5th Cir. 1978). In Turner, The Court of Appeals held that 1) where defendant filed
answer and affirmative defenses, and deposed prospective witnesses in connection with
original complaint and original and second complaints received same docket number,
appeared on same record and were identical in content, two complaints were really one
and the same, so the defendant's actions in response to first complaint constituted an
appearance requiring plaintiffs to give notice of motion for entry of default judgment. Id.
Turner held 2) where plaintiffs' failure to notify defendant of motion provided sufficient
reason for defendant's failure to respond and defendant claimed he had meritorious
defense, trial court should have granted motion for relief from default judgment. Id. The
Turner case is an outlier intended to be interpreted in a manner specific to the set of facts
in that case. All elements of Turner are not present here, including a dismissal for
Plaintiff‟s failure to prosecute.
IV. Response to part C “any other reason” Rule 60(b)1

A. Rule 60(b)1
Decatur Hotels argues that the failure to appear in the suit was the result of
excusable neglect, and the judgment should be set aside on this basis under Rule 60(b)1.
Rule 60(b)1 is designed for cases in which there has been a “mistake”, “surprise”,
“inadvertence,” or “excusable neglect” by either party or the clerk entering the judgment.
In assessing a motion to vacate a default judgment, the 5th
Circuit has interpreted
Rule 60(b)1 as incorporating the Rule 55 “good-cause” standard applicable to entries of
default. In re OCA, Inc., 551 F.3d 359, 369 (5th Cir. 2008). In determining whether good
cause exists to set aside a default judgment under Rule 60(b)1 we examine the following
factors: whether the default was willful, whether setting it aside would prejudice the
adversary, and whether a meritorious defense is presented. Jenkins & Gilchrist a Prof'l
Corp. v. Groia & Co., 542 F.3d 114, 119 (5th Cir. 2008). Courts may also consider
whether the public interest was implicated, whether there was significant financial loss to
the defendant, and whether the defendant acted expeditiously to correct the default. See
generally Jenkins ; In re OCA, Inc., 551 F.3d 359, 369 (5th Cir.2008). The district court
need not consider all of the above factors in ruling on a defendant's 60(b)1 motion; the
imperative is that they be regarded simply as a means of identifying circumstances which
warrant the finding of “good cause.” In re OCA at 369. If a district court finds a
defendant's default to be willful, then the district court need not make any other finding.
Jenkins at 120. Also, willful default does not constitute excusable neglect for the
purposes of dismissing a default judgment. In re OCA at 370.
B. Willful default will preclude court analysis of “good cause” and it‟s finding is
based on a “preponderance of all of the evidence” standard

In the Memorandum in Support of Motion to Set Aside Default Judgment, the
Defendant relies on the slip copy of Meyer v. The Arbor & Terrace Senior Center of
Ruston, LLC, CIV. A. 08-0268, 2009 WL 728503, (W.D. La. Mar. 18, 2009) to
demonstrate that it‟s conduct was not willful.
In Arbor, Meyer filed suit against defendant on February 26, 2008. Meyer
attempted to serve Arbor through its registered agent, Fred Bayles, several times. Id.
Bayles was eventually served through the Louisiana Secretary of State on August 15,
2008. On September 5, 2008, Bayles, the agent, attempted to file an answer on behalf of
Arbor, appearing pro se. Id. The answer was marked deficient because an individual had
signed on behalf of a company, and the company was not represented by licensed
counsel. Id. Bayles was instructed to file a corrective document within 10 days, but
failed to do so, and on October 1, 2008, the Clerk of Court entered a preliminary default
against Arbor for failing to appear. On February 2, 2009, Meyer filed a Motion for
Default Judgment against Arbor, and on February 13, 2009, Arbor attempted to file an
answer through licensed counsel. On February 18, 2009, the answer was marked
deficient because a default had been entered against Arbor, and on March 3, 2009, Arbor
filed a motion to set aside the default stating only that it did not receive notice that a
motion for default judgment had been filed. The Court instructed Arbor to file a
supplemental memorandum to establish good cause, and on March 9, 2009, Arbor filed a
supplemental memorandum. On March 12, 2009, Meyer filed a memorandum in
opposition to the motion to set aside the default. Arbor contended that its default was not
willful, relying on Bayles' declaration, stating he filed a pro se answer, that he had
relocated to New Orleans, and did not receive notice that the answer had been rejected.

In Meyer v. Arbor, unlike the present case, Arbor had a registered agent for the
LLC that attempted to make an appearance. Further, the agent was capable of being
served by the Secretary of State of Louisiana and the registered business location was
accurately maintained by an appropriate representative. Additionally in Arbor, affidavits
were offered up by the defense explaining why service wasn‟t perfected on them, and
they were reasonable excuses as are absent here in the present case. In the present case,
there is no such offering of affidavit, or explanations for the lack of an adequate place of
service or lack of presence regarding an appropriate representative as is required by state
law to be maintained by the Defendant. One of the listed addresses for the LLC was an
empty building. (Defendant Exhibit “13”, O‟Dell Affidavit). The Secretary of State, nor
this Court, could locate the Defendant (Motion for Default Judgment, Defendant Exhibit
“D-12”, Plaintiff‟s Default Motion Exhibits “A”, “B”, and “D”).
C. A willful default is an „intentional failure‟ to respond to litigation based
on the preponderance of all of the evidence standard
“A willful default is an „intentional failure‟ to respond to litigation” based on the
preponderance of all of the evidence, standard. In re OCA at 371. In the Memo in
Support of Setting Aside the Default Judgment, the Defendant argues that the evading of
service of process was not willful. In Arbor, the court examined the expeditiousness of
the response to the Motion for a Default Judgment, as well as the proof by the Plaintiff
that setting aside the Default Judgment would prejudice the Plaintiff, in determining
whether to overturn the Default Judgment. Willfulness can arguably be inferred based on
the period of about six months that Sharif attempted to serve the Defendant repeatedly
and the lack of a lawful maintenance of an agent by the Defendant in this case.
D. Sharif will be prejudiced by vacating the judgment

Not only was the evasion of process arguably willful in light of the surrounding
circumstances, but unlike in Arbor, the setting aside of the default, would prejudice the
Plaintiff, Sharif, in addition to implicating public interest. Plaintiff is a musician, actor,
performer, and musical educator, and as such derives his income from these professional
pursuits. Plaintiff has performed as an actor in numerous national movies including
“Ray” and has worked with multiple productions as an on-stage and off-stage bandleader
for musical performances. Plaintiff has also appeared as a musician on over twenty
nationally distributed albums.
Opposing counsel argues in the Memorandum in Support of Motion to Set Aside
Default Judgment that Tozer v. Charles A. Krause Mill. Co., 189 F.2d 242 (3d Cir. 1951),
and Seven elves Inc v. Eskenazi 635 F. 2d 396, support the position that Decatur‟s
insolvency is a reason that the $400,000.00 Default Judgment against it is prejudicial to
the company. Further, Defendant‟s creditors‟ pursuit of an involuntary bankruptcy for the
company, in addition to the fact that the New Orleans Fine Hotels has reduced its number
of hotels from eight hotels, to four, makes bankruptcy inevitable if the Default Judgment
is enforced.
These are hardly arguments that should negate the Plaintiff‟s right to recovery. In
Tozer, allegations of answer, if established on trial, would have constituted a complete
defense to action and denial of defendant's motion to have judgment set aside was an
abuse of discretion. Id at 242. This case was about the abuse of discretion in the
standard by which to review motions to overturn a default judgment. In Tozer, plaintiff‟s
complaint was based on an alleged oral contract of August 20, 1946, made between
plaintiff and H.L. Raclin & Sons on behalf of defendant for the sale to plaintiff of six

tank cars of „crude corn oil.‟ H. L. Raclin & Sons, it is averred, was authorized to bind
the defendant. Plaintiff argued by virtue of the oral contract, there arose an implied
warranty that the corn oil would conform to certain alleged usages in the New York
market, and that four of the six tank cars of corn oil delivered to plaintiff failed to
conform. Defendant's answer denied that H. L. Raclin & Sons was authorized to bind
defendant. Defendant alleged that the oil shipped to plaintiff was „subject to the usual
terms and conditions applicable to the sale of such commodity by the defendant‟ and that
defendant mailed to plaintiff memoranda and confirmations whereby it expressly negated
any express or implied warranties of quality, the negations were subject to trial on the
merits. Tozer at 244. It was found that these negations were subject to trial on the
merits. This 3rd
Circuit case can be distinguished from the present suit, as it is a sale of
goods case, with no relation to the issues giving rise to the Plaintiff‟s Judgment.
Additionally, Tozer points out that since the relief sought by defendant was essentially
equitable in nature, it is proper for the court to consider whether any prejudice will result
to plaintiff if the judgment is set aside. Tozer at 246. Tozer reiterates that the question
whether defendant presents a wholly meritorious defense, is always an important factor in
consideration of a motion to set aside a default judgment. Id. Here the Defendant has no
meritorious defense as the Decatur has already admitted the misappropriation (Defendant
Exhibits “D-2” and “D-8”. Additionally, Defendant is not arguing that it answered the
complaint, and that the fact that it did should negate entry of Default Judgment, as the
Defendant in Tozer. Rather, the Defendant is arguing that it didn‟t receive notice.
Finally, distinguished from Tozer, Defendant is not a foreign corporation; it is

incorporated in Louisiana, a factor which might lend itself to the conclusion that the
Plaintiff in the present suit was actively avoiding service.
In Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981) it was held that a
default judgment should be overturned when the defendant‟s defense was meritorious and
there was a “confluence of a number of unusual circumstances” which led to the
defendants‟ absence. In Sharif‟s case, that does not exist, as there have been multiple
attempts to bring in the defendant before the default judgment was filed, and the
defendant lacks a meritorious defense.
At the Default Judgment Hearing, counsel for Plaintiff has submitted through
evidence to this Court a reasonable figure to compensate Sharif in this case, independent
and irregardless of Decatur‟s money issues. The evidence examined to arrive at the
judgment amount is already on file with this court. See Plaintiffs Default Judgment.
As Plaintiff Sharif receives about $10,000.00 per image use, Plaintiff is entitled
to a minimum of $50,000.00 for the five (5) unauthorized uses. In addition, Plaintiff‟s
previous authorized use was for one single entry (Harrah‟s and Hotel Monteleone). In
contrast, Defendants advertisements (which used Plaintiff‟s image) benefited eight (8)
hotels owned by Decatur. Plaintiff should be entitled to $400,000.00, as each individual
hotel benefitted from the five advertisements. The cost to each hotel is $10,000.00 times
five advertisements, which comes to $50,000.00 per hotel. Since there are eight hotels
and five unauthorized uses, the Plaintiff is entitled to $400,000.00 owed to the Plaintiff
for use of his image.
E. Lack of a Meritorious Defense will preclude court analysis of “good cause”
and here, the Defendant has already admitted fault, so the results of a trial would
likely resemble the $400,000.00 award

“A refusal to set aside a default judgment is proper in the absence of such a
defense [a meritorious defense].” In re OCA, Inc., 551 F.3d 359, 373 (5th Cir. 2008).
Additionally, “the underlying concern is...whether there is some possibility that the
outcome of the suit after a full trial will be contrary to the result achieved by the default.”
Jenkins at 122. Exhibit‟s A and B describe the manor by which Decatur misappropriated
Defendant‟s image in violation of the Lanham Act and various state laws. Since the
advertisements in question have already been conceded by the Defendant, it is unlikely
that this court will find any merit to their defenses.
V. Shariff‟s claims Under the Federal Lanham Act and Louisiana Law
Regarding Misappropriation are with Merit
Under Louisiana Law, it is an invasion of privacy for a defendant to appropriate
and individual‟s name or like ness for the use or benefit of the defendant. Janubert v.
Crowley Post Signal, Inc., 375 So.2d 1386, 1388 (La. 1979). The purpose of liability for
misappropriation is to protect the “reputation, prestige, social or commercial standing,
public interest or other values of the plaintiff‟s name and likeness.” Matthews v.
Wozencraft, 15 F. 3d. 432, 437 (5th
Cir 1994) (citing Restatement of Torts Section 652C
1997). “An, appropriation occurs when a defendant passes himself as plaintiff or
otherwise seeks to obtain for himself the values and benefits of the plaintiff‟s name or
identity.” Meadows v Hartford Life Insurance Co., 492 F.3d 634, 638 (5th
Cir 2007).
In the instant case the Defendant used Plaintiff‟s photo for an advertising
campaign, without Plaintiff‟s permission, thereby indicating plaintiff‟s endorsement of
defendants hotels and services all in violation of the Lanham Act Section 43(a). See:
Bette Midler v. Ford Motor Co. 849 F. 2d 460 (9th
Circuit 1988) and Tom Waits v. Frito-
Lays, 978 F. 2d 1093 (9th
Cir 1992).

Plaintiff is a musician, actor, performer and musical educator and derives his
income from said endeavors. Plaintiff has acted in numerous movies including “Ray”,
Chess Story (Who do you love); Prodigy: Midnight Bayou; Hard Target: Sonny:
Undercover Blues. He has headlined numerous Jazz Festivals including the NO Jazz
Festival 2011. Plaintiff has licensed his image to Harrah‟s for a one-time use for
$10,000.00 (Plaintiff‟s Exhibit “P-I”, Default Judgment) and $8,500.00 (Plaintiff‟s
Exhibit “P-J”, Default Judgment ) to the Hotel Montelone all of which were submitted to
the Court as exhibits at the hearing on Default Judgment.
VI. Conclusion
Plaintiff respectfully submits that this Court not set aside its January 5th
2011
Default Judgment against the Defendant, Decatur Hotels, and Dismiss with prejudice
Defendants‟ Motion to Set Aside the Default Judgment, as Defendant was served through
their employee Stacy Rico and Defendant failed to Answer the Complaint. Therefore no
Notice of Default Judgment was required under FRCP 55. Defendant has previously
admitted use of Plaintiff‟s image; therefore the only issue is that of compensation, which
this Court has already ruled on. Plaintiff has provided to this Court at the Default
Judgment Hearing sufficient evidence that Plaintiff receives ample compensation for his
image and likeness due to his stature in the music and entertainment industry.
Respectfully submitted:
/s/ Andrew C. Abrams
Gregory Eveline (19913)
Andrew C. Abrams (32280)
5811 Tchoupitoulas St
New Orleans, LA 70115
Phone: 504-894-8803
Attorneys for Plaintiff

CERTIFICATE OF SERVICE
I hereby certify that on the 7th
of June, 2011, a copy of the foregoing was filed
electronically with the clerk of Court using the CM/ECF systems. This notice of this
filing will be sent to all attorneys of record by operation of the Court‟s electronic filing
system.
/s/ Andrew C. Abrams

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