Lopez v. Gonzalez et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
JOSE MANUEL LOPEZ,
Plaintiff,
VS.
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CIVIL ACTION NO. 6:25-CV-00024
LEE MICHAEL GONZALEZ, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
This is an action for federal trademark infringement and other related claims. (D.E.
1). Pending is Plaintiff’s Motion for Default Judgment. (D.E. 28). For the reasons stated
below, it is recommended that Plaintiff’s Motion be GRANTED as to Defendant James
“Jimmy” Gonzalez as to liability only and be DENIED as to Defendant Lee Michael
“Mike” Gonzalez. (D.E. 28).
I. BACKGROUND
MAZZ is a Tejano music band formed in the late 1970s by Plaintiff Jose Manuel
Lopez and the father of both Gonzalez Defendants, who passed away in 2018. Plaintiff
registered the trademark for “Joe Lopez y Grupo Mazz” on August 3, 2021 and registered
two trademarks for “Mazz” on January 17, 2023 and December 17, 2024, respectively.
(D.E. 37-1, Pages 1 and 3). On April 15, 2025, Plaintiff filed this complaint asserting a
United States District Court
Southern District of Texas
ENTERED
May 27, 2026
Nathan Ochsner, Clerk
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claim for trademark infringement and other similar claims against Defendants related to
their alleged unauthorized use of Plaintiff’s registered MAZZ trademarks in connection
with musical performances and recordings. (D.E. 1).
Defendant Lee Michael Gonzalez was served with the complaint in this case on May
31, 2025 and Defendant James Gonzalez was served on July 18, 2025. (D.E. 16 and D.E.
23). Therefore, their responsive pleadings were due on or before June 21, 2025 and August
18, 2025, respectively. Fed. R. Civ. P. 12(a)(1)(A)(i). On November 5, 2025, Plaintiff
filed an Application for Entry of Default Judgment against both Gonzalez Defendants.
(D.E. 26). Plaintiff then filed the pending Motion for Default Judgment against both
Gonzalez Defendants, asserting they failed to timely answer or otherwise appear in this
case, on November 24, 2025. (D.E. 28). Thereafter, on December 9, 2025, Defendant Lee
Gonzalez filed an Answer. (D.E. 29). The Clerk of Court entered an Entry of Default
against Defendant James Gonzalez on January 8, 2026. (D.E. 30).
On March 19, 2026, the Motion for Default Judgment was referred to the
undersigned who held a hearing on April 23, 2026, ordering Plaintiff to file appropriate
damages affidavits in support on or before May 22, 2026. (D.E. 31 and D.E. 36). Plaintiff
has filed two affidavits in support. (D.E. 35 and D.E. 37). At the hearing, Plaintiff’s
counsel indicated he was proceeding with his request for default judgment solely against
non-appearing Defendant James Gonzalez.
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II. DISCUSSION
Plaintiff asserts he is entitled to a default judgment pursuant to Rule 55(b)(2) of the
Federal Rules of Civil Procedure. Rule 55 permits the Court to enter a default judgment
“[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead
or otherwise defense, and that failure is shown by affidavit or otherwise…” Fed. R. Civ.
P. 55. “Rule 55(b) provides for entry of default judgment either by the clerk of by the
court. If the amount of damages is not for a sum certain or cannot be determined by
computation, the court must make a determination of damages before entering default
judgment.” Ashburton Int’t Supply, S.L. v. Venezuela, No. 4:20-cv-2426, 2024 WL
4720605, at *2 (S.D. Tex. Sept. 2, 2024) (citing Fed. R. Civ. P. 55(b)(2)(B) (“The court
may conduct hearings...it needs to conduct an accounting, determine the amount of
damages, establish the truth of any allegation by evidence; or investigate any other
matter.”) “A default judgment ‘is a judgment on the merits that conclusively establishes
the defendant’s liability’” and requires the entry of a default and then a default judgment.
Id. (citations omitted). Further, a plaintiff seeking default judgment is not entitled to it
simply because a defendant has failed “to meet a procedural time requirement.” Id.
(citation omitted). The pleadings must provide a sufficient basis for a judgment to be
entered as “[t]he defendant, by his default, admits the plaintiff’s well-pleaded allegations
of fact” and are taken as true. Id.
There are six factors courts consider when determining whether the entry of default
judgment is appropriate, specifically, whether (1) material issues of fact exist; (2) there has
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been substantial prejudice; (3) grounds for default are clearly established; (4) default was
caused by a good faith mistake or excusable neglect; (5) the court would be obliged to set
aside the default on defendant’s motion and (6) the default judgment is a harsh remedy.
Ashburton, 2024 WL 4720605, at *5 (citation omitted).
Here, the complaint, taking the facts set forth as true, establishes Plaintiff has several
trademarks for “Mazz” and Defendant James Gonzalez has used and/or identified himself
as “Mazz” in connection with at least one musical performance without Plaintiff’s consent.
(D.E. 1). Therefore, the complaint clearly establishes a trademark violation and Plaintiff
has been accordingly prejudiced by its use. Plaintiff fulfilled his service obligation, the
deadline for filing a responsive pleading has long since passed and the Clerk of Court has
entered a default, clearly establishing the grounds for default. To date, Defendant James
Gonzalez has failed to make an appearance, to file a responsive pleading or to otherwise
participate in this case. There is no evidence of a good faith mistake. Further, given the
nature of the damages in this case, a default is not a harsh remedy and there is no reason
currently apparent to the undersigned that would require the Court to set aside the default
upon Defendant James Gonzalez’s motion. Therefore, the undersigned recommends all
requirements for default judgment as to liability against Defendant James Gonzalez have
been met and entry of default judgment is appropriate. The undersigned further
recommends Plaintiff’s request for a permanent injunction enjoining Defendant James
Gonzalez and his agents from using the Mazz trademarks be entered. (D.E. 1, Page 7 and
D.E. 28, Page 2).
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However, as discussed below, the undersigned recommends Plaintiff be required to
file a motion for damages and the Court set further hearings as contemplated by Rule
55(b)(2)(B) regarding the quantum of damages as well as attorney's fees and costs, in
addition to other injunction requests. While Plaintiff has submitted two affidavits in
support of his claim for attorney’s fees and costs as well as damages, the undersigned
recommends these are insufficient to establish the relief sought. Plaintiff requests an award
of monetary damages pursuant to 15 U.S.C. § 1117 (Recovery for violation of trademark
rights) as well as exemplary damages under Texas law as well as his costs, attorney’s fees
as provided by 17 U.S.C. § 505 (Remedies for infringement: Costs and attorney’s fees)
along with pre- and post-judgment interest. Additionally, Plaintiff requests the Court order
the immediate destruction of any infringing materials, including any promotional materials,
both tangible and digital, and requests additional terms for a permanent injunction
preventing Defendant Jamez Gonzalez from “[m]aking any false or misleading statements
about Plaintiff or his services.” (D.E. 28, Page 2).
Plaintiff’s counsel has submitted an affidavit requesting attorney fees in the amount
of $27,345.75 and costs in the amount of $271.00, averring these fees reflect only the work
necessary to prosecute Plaintiff’s claims against Defendant James Gonzalez. (D.E. 35,
Pages 3-4). However, upon review, there are several line items included in this amount for
work which appear to include, either jointly or singly, work related to one or both of the
other defendants in this case and is being charged fully to the Defendant James Gonzalez
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and several line items that appear to have no mention of Defendant James Gonzalez at all
but are included. (D.E. 35-1).
Further, Plaintiff was released from incarceration in 2018, after serving a portion of
his sentence for aggravated sexual assault of a child. (D.E. 37-3 and D.E. 37-5). While
not specifically pleaded, in the declaration of Sandra Lopez, Plaintiff’s wife and manager,
in support of the pending Motion and damages request, she avers Defendant James
Gonzalez “began an online campaign to public harass and disparage” Plaintiff by
“pressuring venues to cancel performances for ‘Joe Lopez Y Grupo Mazz’ that were
already booked as well as encouraging public protests against the band” asserting Plaintiff
is “a rapist, pedophile, and has multiple underage victims.” (D.E. 37, Page 2 and D.E. 37-
2). Ms. Lopez avers these actions have resulted in lost business and performance
opportunities in 2021 and 2025 and, along with trademark infringement and the revocation
of a lifetime achievement award, have caused $210,000.00 in damages. (D.E. 37, Page 3).
However, the undersigned recommends Plaintiff has not submitted sufficient evidence to
establish a damages award for this amount or for further restraining Defendant James
Gonzalez beyond his use of the Mazz trademarks.
III. RECOMMENDATION
After carefully reviewing the pleadings, affidavits and relevant legal authority, the
undersigned RECOMMENDS Plaintiff’s Motion be GRANTED as to Defendant James
Gonzalez as to liability only. (D.E. 28). The undersigned further RECOMMENDS
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Plaintiff be required to file a motion for damages, and supporting affidavits and other
materials, to establish the amount of the default judgment and any further injunctive relief.
ORDERED on May 27, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to 28 U.S.C. §
636(b)(1)(c); Rule 72(b) of the Federal Rules of Civil Procedure; and Article IV, General
Order No. 2002-13, United States District Court for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendations in a Magistrate Judge’s report and recommendation within
FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the District Court. Douglass v. United Servs.
Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
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