Moebius v. Carnevale et al, No. 2:2021cv00970 - Document 75 (D. Nev. 2023)
Court Description: ORDER granting 73 Motion for Entry of Clerks Default as to Desert Art, LLC only. Signed by Magistrate Judge Cam Ferenbach on 10/24/2023. (Copies have been distributed pursuant to the NEF - LG)
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Moebius v. Carnevale et al 1 2 3 4 5 6 Mathew K. Higbee, Esq., SBN 11158 HIGBEE & ASSOCIATES 3110 W Cheyenne Ave, #200 North Las Vegas, NV 89032 (714) 617-8373 (714) 597-6729 facsimile Email: mhigbee@higbeeassociates.com Attorney for Plaintiff, MICHAEL MOEBIUS UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 Doc. 75 MICHAEL MOEBIUS, Case No. 2:21-cv-00970-ART-VCF Plaintiff, 9 10 v. 11 TONY CARNEVALE; DESERT ART, LLC d/b/a CARNEVALE GALLERY; CAESARS ENERTATINMENT, INC.; and DOES 1 through 10 inclusive, 12 13 Defendants. 14 15 RENEWED MOTION FOR ENTRY OF DEFAULT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 16 PLEASE TAKE NOTICE that Plaintiff Michael Moebius hereby moves to for entry 17 of default against Defendant Tony Carnevale and Defendant Desert Art, LLC. 18 This Motion is based on this Notice of Motion, the attached memorandum of 19 points and authorities, and the pleadings, files and other materials that are on file with 20 the Court or may be presented. 21 22 23 24 25 26 27 Dated: August 28, 2023 Respectfully submitted, /s/ Mathew K. Higbee Mathew K. Higbee, Esq., Nevada Bar No. 11158 HIGBEE & ASSOCIATES 3110 W Cheyenne Ave, #200 North Las Vegas, NV 89032 (714) 617-8373 (714) 597-6729 facsimile Attorney for Plaintiff 28 i MOTION FOR ENTRY OF DEFAULT Dockets.Justia.com MEMORANDUM OF POINTS AND AUTHORITIES 1 2 I. INTRODUCTION 3 This is an action for copyright infringement brought by artist Michael Moebius 4 (“Moebius”) against Desert Art, LLC (“Desert Art”), its owner Tony Carnevale 5 (“Carnevale”), as well as Caesars Entertainment, Inc. (“Caesars”). 6 Moebius is the creator of an image of Audrey Hepburn blowing bubble-gum 7 bubbles (“Hepburn Work”). Complaint ¶13. Defendants Desert Art and Carnevale 8 own and operate Carnevale Gallery, which was located on property owned by 9 Caesars, with Caesars receiving a portion of Carnevale Gallery’s sales as 10 compensation in exchange for providing the gallery space. See generally Complaint 11 ¶¶16-21. 12 In 2017 Moebius entered into a consignment agreement with Carnevale 13 Gallery which terminated in 2018. Complaint ¶¶22-24. After the consignment 14 agreement was terminated, Moebius was assured that Carnevale Gallery would cease 15 selling Moebius’ artwork. Complaint ¶25. 16 In late 2019, a fan of Moebius sent him a photograph showing a counterfeit 17 version of the Hepburn Work being displayed and offered for sale at the Carnevale 18 Gallery. Complaint ¶30. Prior to filing suit, Moebius made numerous unsuccessful 19 attempts to resolve the matter. Complaint ¶35. 20 A. 21 At the inception of the case, Defendants Carnevale and Desert Art have been 22 represented by Attorneys Sagar Raich and Brian Schneider of Raich Law, PLLC. On 23 October 4, 2022, Raich and Schneider moved to withdraw as attorneys of record for 24 Carnevale and Desert Art, LLC. Dkt. #39. No party opposed the Motion. On October 25 17, 2022, the Court Ordered an in person hearing on the Motion and Ordered 26 Carnevale and a representative from Desert Art, LLC to appear in person at the 27 hearing. Dkt. #40. 28 Procedural Background On October 25, 2022, a hearing was held in front of the Honorable Magistrate 1 MOTION FOR ENTRY OF DEFAULT 1 Cam Ferenbach, with Defendant Tony Carnevale appearing on behalf of himself and 2 Desert Art, LLC. Dkt. #43. At the hearing, Magistrate Judge Ferenbach granted the 3 Motion to Withdraw, ordered Carnevale and Desert Art, LLC to retain new counsel 4 no later than December 12, 2022, and also ordered that pending discovery requests 5 served on Defendants Carnevale and Desert Art, LLC be answered no later than 6 January 11, 2023. Ibid. 7 Having not retained counsel or responded to the pending discovery requests 8 by the court ordered deadline, Moebius moved for entry of default against Defendants 9 Carnevale and Desert Art, LLC on January 13, 2023. Dkt. #50. On January 18, 2023, 10 Magistrate Judge Ferenbach held a status conference. Dkt. #52. At the status 11 conference, Magistrate Judge Ferenbach denied, without prejudice, Moebius’ motion 12 and granted Defendants Carnevale and Desert Art, LLC until February 17, 2023, to 13 retain new counsel. Ibid. 14 On February 17, 2023, Jarrod L. Rickard, new counsel for Defendants 15 Carnevale and Desert Art, LLC made an appearance. Dkt. #53. On June 30, 2023, 16 attorney Rickard moved to withdraw as counsel for Defendants Carnevale and Desert 17 Art, LLC. Dkt. #56. On July 24, 2023, Magistrate Judge Ferenbach granted the 18 motion to withdraw and set a deadline of August 23, 2023 for Defendants Carnevale 19 and Desert Art, LLC to retain new counsel. Dkt. #61. As of the date of this Motion, Defendants Carnevale and Desert Art, LLC have 20 21 not retained new counsel. 22 II. ENTRY OF DEFAULT IS AN APPROPRIATE REMEDY 23 Federal Rule of Civil Procedure 55(a) provides that “when a party against 24 whom a judgment for affirmative relief is sought has failed to plead or otherwise 25 defend, and that failure is shown by affidavit or otherwise, the clerk must enter the 26 party’s default.” (emphasis added). When a party is ordered to retain counsel, but 27 fails to do so, entry of default pursuant to Rule 55 is the proper remedy. See 28 FarmaSea Health, LLC v. Me. Coast Sea Vegetables, Inc., 2012 U.S. Dist. LEXIS 2 MOTION FOR ENTRY OF DEFAULT 1 192402, at *6-7 (D. Ariz. Feb. 7, 2012) (“The Plaintiff has failed to comply with the 2 Court’s Orders of August 26, 2011 and November 18, 2011 directing the Plaintiff to 3 retain counsel. There is no indication that the Plaintiff is defending against the 4 Counterclaim.”); see also Leviton Mfg. Co. v. Fastmac Performance Upgrades, Inc., 5 2013 U.S. Dist. LEXIS 129986, at *5 (S.D.N.Y. July 8, 2013) (“A corporate 6 defendant’s failure to comply with a court’s order that the defendant obtain counsel 7 constitutes failure to ‘otherwise defend’ for the purpose of Rule 55(a) such that an 8 entry of default is justified.”). 9 Here, Magistrate Judge Ferenbach ordered Carnevale and Desert Art, LLC to 10 retain new counsel no later than August 23, 2023. Dkt. #61. Defendants Carnevale 11 and Desert Art, LLC, had actual knowledge of these orders because they were present 12 at the hearing. Ibid. Despite that, Defendants Carnevale and Desert Art, LLC, have 13 not retained new counsel. The failure by Defendants Carnevale and Desert Art, LLC 14 to comply with Magistrate Ferenbach’s order represents a failure to defend the action 15 and represents a second time during these proceedings that they have failed to retain 16 counsel by the court ordered deadline. 17 As such, the Court should direct the clerk to enter default against Defendants 18 Tony Carnevale and Desert Art, LLC pursuant to Federal Rules of Civil Procedure 19 55. A copy of this Motion and the accompanying declaration have been served by 20 mail to the address listed on the Nevada Secretary of State website for Desert Art, 21 LLC, and Tony Carnevale. Higbee Decl. ¶ 5. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 3 MOTION FOR ENTRY OF DEFAULT 1 III. CONCLUSION 2 In conclusion, Plaintiff Michael Moebius requests that the Court direct the 3 clerk to enter default against Defendants Tony Carnevale and Desert Art, LLC 4 pursuant to Federal Rules of Civil Procedure 55. 5 6 7 8 9 10 11 Dated: August 28, 2023 Respectfully submitted, /s/ Mathew K. Higbee Mathew K. Higbee, Esq., Nevada Bar No. 11158 HIGBEE & ASSOCIATES 3110 W Cheyenne Ave, #200 North Las Vegas, NV 89032 (714) 617-8373 (714) 597-6729 facsimile Attorney for Plaintiff 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 MOTION FOR ENTRY OF DEFAULT PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 I, the undersigned, say: I am over the age of 18 and not a party to the within action My business address is 1504 Brookhollow Drive, Suite 112, Santa Ana, CA 92705. On August 28, 2023, I caused to be served the foregoing documents: MOTION FOR ENTRY OF DEFAULT; DECLARATION OF MATHEW K. HIGBEE on the following parties in this action by placing a true copy thereof enclosed in a sealed envelope as follows: Desert Art, LLC c/o Tony Carnevale 3500 Las Vegas Blvd. South, Suite R-10, Las Vegas, NV, 89109 I certify under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on August 28, 2023, at Santa Ana, California. /s/ Diana Ramirez Diana Ramirez 19 20 21 22 23 24 25 26 27 28 5 MOTION FOR ENTRY OF DEFAULT 1 2 3 4 5 6 Mathew K. Higbee, Esq., SBN 11158 HIGBEE & ASSOCIATES 3110 W Cheyenne Ave, #200 North Las Vegas, NV 89032 (714) 617-8373 (714) 597-6729 facsimile Email: mhigbee@higbeeassociates.com Attorney for Plaintiff, MICHAEL MOEBIUS UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 MICHAEL MOEBIUS, Case No. 2:21-cv-00970-ART-VCF Plaintiff, 9 10 v. 11 TONY CARNEVALE; DESERT ART, LLC d/b/a CARNEVALE GALLERY; CAESARS ENERTATINMENT, INC.; and DOES 1 through 10 inclusive, 12 13 14 DECLARATION OF MATHEW K. HIGBEE Defendants. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DECLARATION OF MATHEW K. HIGBEE DECLARATION OF MATHEW K. HIGBEE 1 2 3 I, Mathew K. Higbee, declare as follows: 1. I am over the age of 18 years old. I am an attorney at law admitted to 4 practice in the District of Nevada. I have personal knowledge of all matters stated 5 herein, and if called as a witness, I could and would competently testify thereto. 6 2. I am the attorney for Plaintiff Michael Moebius in this matter. 7 3. On July 24, 2023, the Honorable Magistrate Judge Cam Ferenbach 8 granted Defendants Tony Carnevale and Desert Art, LLC’s Motion to Withdraw, 9 ordered Carnevale and Desert Art, LLC to retain new counsel no later than August 10 11 12 13 23, 2023. 4. As of the date of this Declaration, Defendants Carnevale and Desert Art, LLC have not retained new counsel as ordered by Magistrate Judge Ferenbach. 5. I have caused a copy of this Motion and Declaration to be served by 14 mail to the address listed on the Nevada Secretary of State website for Desert Art, 15 LLC, and Tony Carnevale. 16 17 18 I certify under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed on August 28, 2023, at Las Vegas, Nevada. 19 20 21 __________________ 22 Mathew K. Higbee 23 24 25 26 27 28 2 DECLARATION OF MATHEW K. HIGBEE 1 2 3 4 5 6 Mathew K. Higbee, Esq., SBN 11158 HIGBEE & ASSOCIATES 3110 W Cheyenne Ave, #200 North Las Vegas, NV 89032 (714) 617-8373 (714) 597-6729 facsimile Email: mhigbee@higbee.law Attorney for Plaintiff, MICHAEL MOEBIUS UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 MICHAEL MOEBIUS, Case No. 2:21-cv-00970-ART-VCF Plaintiff, 9 [PROPOSED] ORDER 10 v. 11 TONY CARNEVALE; DESERT ART, LLC d/b/a CARNEVALE GALLERY; CAESARS ENERTATINMENT, INC.; and DOES 1 through 10 inclusive, 12 13 Defendants. 14 15 [PROPOSED] ORDER 16 17 18 19 Having considered the Motion of Plaintiff Michael Moebius to enter default against Defendants Desert Art, LLC and Tony Carnevale, IT IS HEREBY ORDERED as follows: 20 IN PART 21 (1) The Motion is GRANTED; 22 (2) The clerk is directed to enter default against Defendants Desert Art, LLC , and Tony Carnevale. only. 23 24 25 10-24-2023 DATED: September ___, 2023 26 27 28 ______________________________ Cam Ferenbach United States Magistrate Judge 1 [PROPOSED] ORDER
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