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March 28, 2003


The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge.


In pursuant to the Order granting plaintiff's motion for default judgment, the Court orders defendant to pay plaintiff statutory damages in the amount $33,474. As a successful party-plaintiff is also entitled to an award of full costs and reasonable attorney fees. The Court therefore Orders that defendant pay plaintiff $9,342.20 in attorney fees and $430.45 in costs.

IT IS ORDERED AND ADJUDGED that judgment is entered for plaintiff.


In 1977, plaintiff composed a song, entitled "Cross in the Middle," the copyright to which he registered in 1989. In 1996, plaintiff became aware that defendant Doc McKenzie had recorded and was performing a song called "Man in the Middle," which plaintiff believed infringed his copyright to "Cross in the Middle." Id.

Based on this alleged infringement, plaintiff commenced this action against the record label that produced "Man in the Middle" and its manager for copyright infringement, pursuant to 17 U.S.C. § 101 et seq, false designation of origin, pursuant to 15 U.S.C. § 1125(a), and unfair and deceptive business practices under California's Unfair Competition Law (UCL), pursuant to Cal Bus & Prof § 17200 et seq. See Compl (Doc #1).

An amended complaint (FAC) was filed on September 12, 1997, naming Doc McKenzie and Benny Hill as additional defendants. See Doc #39. Plaintiff subsequently agreed to a settlement resolving his claims against Stephen Sturkie, individually and dba First Lite Records; and a consent decree was entered on May 11, 1998. See Doc #51. On December 3, 1999, defendant Hill was voluntarily dismissed. See Doc #73.

The prosecution of plaintiff's claims against Doc McKenzie (defendant), by contrast, has followed a tortuous path. Defendant received service of the summons and complaint on January 29, 1998. Proof of service was filed with the court on February 9, 1998. See Doc #45. Plaintiff requested an entry of default on February 26, 1998; and default was entered on March 5, 1998. See Docs #46. Plaintiff moved for default judgment and in response to that motion defendant entered an initial appearance.

On December 9, 1999, the court vacated the February 26, 1998, entry of default, granted defendant's motion for leave to answer the FAC and denied plaintiff's pending motion for default judgment. See 12/09/99 Order (Doc #72). On October 12, 2000, the court granted defense counsel's motion to withdraw, based on defendant's failure to pay attorney fees and expenses. See Doc #81. Defendant thereafter failed to appear at a case management conference scheduled for October 17, 2000. A short time later, plaintiff renewed his motion for default judgment. See Doc #84. Because a second default had not been entered, that motion was denied in an order dated December 5, 2000. See Doc #86.

On January 26, 2001, plaintiff requested entry of default against defendant and default was entered on February 26, 2001. See Docs ##87, 91. Plaintiff renewed his motion for default judgment against defendant a third time and the court, on July 11, 2001, issued an order to show cause why default judgment should not be entered. See Docs ##92, 94. On September 14, 2001, after receiving defendant's return to the order to show cause, plaintiff's motion for default judgment was vacated. See Doc #97.

At this point, the sputtering course of this litigation appeared to take a turn for the better. The parties reached a settlement agreement and the court entered a consent decree on March 29, 2002. See Doc #99. A crucial term of the consent decree was that defendant's failure to make either of two required payments to plaintiff, which together would have totaled $8,400, opened the door for plaintiff to renew his motion for default judgment and seek whatever damages and other relief lawfully available. See Consent Decree (Doc #99, Exh A), ¶ 2.

Defendant in fact failed to make either of the required payments. And plaintiff now moves for default judgment and an award of statutory damages. See Doc #105. plaintiff also seeks injunctive relief against defendant barring future infringements of plaintiff's copyright to "Man in the Middle," pursuant to 17 U.S.C. § 502, and an award of attorney fees and costs, pursuant to 17 U.S.C. § 505. Lastly, plaintiff seeks to recover an additional $4,200 from defendant's former counsel, Joseph L. Smalls, Jr, who allegedly represented to plaintiff that he had placed the first of defendant's $4,200 payments in his client trust account and would promptly pay plaintiff that sum once the consent decree was entered. According to plaintiff, upon entry of the consent decree, Smalls failed to pay out the $4,200 in his possession and can be held accountable to plaintiff by the court for this failure.

Plaintiff does not request, in the motion for default judgment, any relief for his false designation claims under 15 U.S.C. § 1125(a) or for his UCL claims under California Business & Professions Code § 17200. In the FAC, plaintiff seeks an injunction restraining defendant from any further violations of 15 U.S.C. § 1125(a), damages, attorney fees and costs and any profits obtained by defendant as a result of "defendants" acts of unfair competition." See FAC (Doc #39), ¶¶ 24-25. The court presumes that plaintiff's reference to "unfair competition" in his discussion of the false designation claims is erroneous and that plaintiff intended by these paragraphs to seek relief for any conduct of defendant amounting to false designation. Plaintiff seeks the same forms of relief — an injunction, damages, attorney fees and defendant's profits — for defendant's alleged UCL violations. See FAC (Doc #39), ¶¶ 28-29.

Defendant has filed neither an opposition nor a statement of non-opposition as required by Civil Local Rule 7-3. Nor did defendant appear, either in person or through counsel, at the hearing on plaintiff's motion, held September 27, 2002.

For the reasons detailed below, plaintiff's motion for default judgment (Doc #105) is GRANTED. Plaintiff shall be awarded statutory damages for defendant's infringement of plaintiff's copyright to the song, "Man in the Middle," as outlined below. Because plaintiff can point to no authority to support any claim for damages against Smalls, plaintiff's request for an award of $4,200 against defendant's former counsel is DENIED.

"Courts have inherent equitable powers to dismiss actions or enter default judgments for failure to prosecute, contempt of court, or abusive litigation practices." Televideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980); Link v. Wabash RR, 370 U.S. 626, 632 (1962); United States v. Moss-American, Inc., 78 FRD 214, 216 (E.D. Wis. 1978)).

"The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Televideo Systems, 826 F.2d at 917-18 (quoting Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977)). "Upon entry of default judgment, facts alleged to establish liability are binding upon the defaulting party, and those matters may not be relitigated on appeal." Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (citations omitted). Following default judgment, a defendant is deemed to have admitted the well-pleaded allegations in the complaint. Benny v. Pipes, 799 F.2d 489, 495 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. 1987) (citing Thomson v. Wooster, 114 U.S. 104, 114 (1884); In re Visioneering Construction, 661 F.2d 119, 124 (9th Cir. 1981)).

The consent decree the parties entered and the court approved provided that defendant would make two payments of $4,200 each to plaintiff, the first within seven business days of defendant's receipt of a fully executed original copy of the settlement agreement and the second on or before March 1, 2002. See Consent Decree (Doc #99), Exh A, ¶ 3. It further provides that "[i]f the second check is not received before the due date, [defendant] shall be in default." Id. Defendant has failed to make either of the required payments. See Gordet Decl (Doc #102), Exh C.

Defendant's failures to abide by the terms of the settlement decree and to attend the hearing scheduled for plaintiff's motion for default judgment are the last in a series of failures by defendant actively — or even passively — to engage in the defense of his case. As outlined above, he has repeatedly missed scheduled court appearances. Upon retaining counsel, he failed to pay costs and fees to which he had agreed, thereby precipitating his counsel's withdrawal. Having been afforded repeated opportunities to defend himself in this matter, defendant has abdicated his responsibility to do so for the final time. At this stage of ...

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