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Broadcast Music, Inc. v. CJ's Saloon LLC

United States District Court, N.D. Alabama, Middle Division

January 6, 2020

BROADCAST MUSIC, INC., et al., Plaintiffs,
v.
CJ's SALOON LLC d/b/a CJ's SALOON a/k/a CJS SALOON, and CYNTHIA DEWBERRY, Defendants.

          MEMORANDUM OPINION AND ORDER

          ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE

         This 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).

         Plaintiffs 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.

         The 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).

         I. RELEVANT BACKGROUND

         Plaintiffs 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).

         On June 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).

         On July 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).

         On July 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 note).

         On 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. (Id.).

         On September 20, 2019, Defendants filed their motion to set aside the judgment. (Doc. 14).

         II. DISCUSSION

         Defendants move to set aside the default judgment pursuant to Federal Rules of Civil Procedure 60(b)(1) and 60(b)(3). (Doc. 14 at 1, 5-9).

         1. ...


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