United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
matter is before the court on Defendants CJ's Saloon LLC
and Cynthia Dewberry's motion to set aside default
judgment. (Doc. 14). Also before the court is Plaintiffs'
motion to strike a declaration from Defendants' attorney,
James Wooten, filed in support of the motion to set aside
default judgment. (Doc. 17).
Broadcast Music, Inc. (“BMI”), Manchaca Music,
Blame Music, Fourteenth Hour Music, Inc., Springtime Music,
Inc., Bocephus Music, Inc., Sony/ATV Songs LLC, Cotillion
Music, Inc., Rondor Music International, Inc., Arc/Conrad
Music LLC, Songs of Universal, Inc., Escatawpa Songs, LLC,
and Leahrae Music Co. allege that Defendants violated the
Copyright Act by engaging in unauthorized public performances
of various musical compositions that Plaintiffs own or to
which BMI has acquired public performance rights.
court entered a final default judgment against Defendants
because despite being properly served, Defendants did not
appear or defend Plaintiffs' well-pleaded allegations.
(Doc. 13). Defendants now move the court to set aside that
final default judgment pursuant to Federal Rules of Civil
Procedure 60(b)(1) and 60(b)(3). Because Defendants have not
met their burden under either standard, the court
DENIES the motion to set aside default
judgment. (Doc. 14). In addition, because the court has not
relied on the challenged declaration in ruling on
Defendants' motion or because the information does not
entitle Defendants to relief, the court
DENIES Plaintiffs' motion to strike as
MOOT. (Doc. 17).
filed this lawsuit on April 30, 2019. (Doc. 1). Plaintiffs
allege that Defendants, the owners and operators of CJ's
Saloon, performed nine musical compositions without a license
or permission to do so. (Id.). The complaint asserts
nine claims of copyright infringement. (Id.). By May
21, 2019, Plaintiffs properly served both Defendants with the
summons and complaint. (Doc. 5).
10, 2019, Plaintiffs filed a letter dated May 31, 2019 from
Defendant Cynthia Dewberry. (Doc. 6). Also on June 10, 2019,
Plaintiffs' counsel mailed Ms. Dewberry a letter
explaining that he had filed her May 31, 2019 letter with the
court as courtesy. (Doc. 22-1). The letter explained that
Plaintiffs did “not believe [Ms. Dewberry's] letter
suffices as an answer or other appropriate response to the
Complaint under the applicable rules of procedure.”
(Doc. 22-1). Plaintiffs' counsel urged Ms. Dewberry
“to retain counsel and to file a proper answer or
response directly with the court clerk.” (Doc. 22-1).
Plaintiffs' counsel ended his letter with a warning that
if Ms. Dewberry did not file an answer or response to the
complaint, a default may be entered against her for the
relief requested in the complaint. (Doc. 22-1).
1, 2019, the court entered an order explaining that
Plaintiffs had properly served Defendants, but Defendants had
failed to file a responsive pleading within 21 days. (Doc. 7
at 1) (citing Fed.R.Civ.P. 12(a)(1)(A)(i)). The court noted
that Plaintiffs had filed Ms. Dewberry's letter, but the
letter did not constitute a responsive pleading because Ms.
Dewberry did not file it with the court. (Doc. 7 at 2, n.1).
The court asked Plaintiffs to show cause why the court should
not dismiss the case for failure to prosecute. (Doc. 7 at 2).
3, 2019, Plaintiffs filed a motion for entry of default, and
the Clerk entered default against Defendants. (Docs. 8, 9).
Consistent with this court's practices, the Clerk mailed
a copy of the entry of default to Defendants along with a
copy of the court's pro bono plan which explained how
Defendants could apply for pro bono counsel if they could not
afford to hire an attorney. (See July 3, 2019 staff
August 6, 2019, Plaintiffs filed a motion for default
judgment. (Doc. 10). Because Plaintiffs' well-pleaded
allegations and other evidence supported their claims for
copyright infringement, the court granted the motion for
default judgment on August 20, 2019. (Doc. 12). The court
entered default judgment and awarded Plaintiffs $27, 000 in
statutory damages and $3, 955 in attorney's fees and
costs. (Doc. 13). The court also permanently enjoined
Defendants from infringing the subject musical compositions.
September 20, 2019, Defendants filed their motion to set
aside the judgment. (Doc. 14).
move to set aside the default judgment pursuant to Federal
Rules of Civil Procedure 60(b)(1) and 60(b)(3). (Doc. 14 at