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Music v. Roadhouse

November 13, 2008



Previously pending on this court's law and motion calendar for September 17, 2008, was plaintiffs' motion for entry of default judgment. Plaintiffs were represented by Forrest A. Plant, Jr. Defendants did not appear. This case was referred to the undersigned pursuant to Local Rule 72-302(c)(19) and 28 U.S.C. § 636(b)(1). Upon review of the motion, supporting documents, and plaintiffs' oral argument, and good cause appearing, the court now issues the following findings and recommendations.


This case is proceeding on the complaint filed April 30, 2008, alleging copyright infringement pursuant to 17 U.S.C. §§ 101 et seq., based on four instances of defendants' alleged public performance*fn1 of copyrighted musical compositions. This action is brought on behalf of plaintiffs by the American Society of Composers, Authors and Publishers ("ASCAP").

"To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361 (1991). "Schedule A" of the complaint lists four musical compositions, their writers, dates of publication, and certificates of registration with ASCAP pursuant to Title 17; each composition designates one or two plaintiff(s) ("owners of the copyrights" and predecessors in interest), and the alleged "date of known infringement" by defendants. The individual defendants are the owners and managers of defendant Roadhouse, which offers public accommodation, refreshment and entertainment. The complaint alleges that defendants knowingly permitted the unauthorized public performance of the compositions Balla Baby, Locked Up, Love in an Elevator, and Enter Sandman,*fn2 without first obtaining the requisite permission or license from plaintiffs or ASCAP.

Jurisdiction is premised upon 28 U.S.C. § 1338(a) ("[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents . . . copyrights and trademarks. . ."). The complaint seeks permanent injunctive relief, statutory damages in the amount of $20,000 ($5,000 per infringement), fees ($750) and costs ($457.70).

These claims for relief, fees and costs are again set forth in plaintiffs' motion of default judgment.

Defendants were each served with the summons and complaint on May 16, 2008.*fn3 See Pacific Atlantic Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir.1985) (default judgment void without personal jurisdiction). Defendants failed to file an answer or otherwise appear in this action. The Clerk entered default against each defendant on July 8, 2008.

Plaintiff now moves for entry of default judgment pursuant to Fed. R. Civ. P. 55(b)(2).


Pursuant to Federal Rule of Civil Procedure 55(a), the Clerk is required to enter default when the fact of default is established by affidavit or otherwise. Fed. R. Civ. P. 55(a). The Clerk's entry of default against defendants effects their admission of the factual allegations of the complaint, except those relating to the amount of damages. Fed. R. Civ. P. 8(b)(6) ("An allegation--other than one relating to the amount of damages-- is admitted if a responsive pleading is required and the allegation is not denied"); Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977). The court finds that the well pleaded allegations of the complaint state a claim for which relief can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976).

It remains within the sound discretion of the district court to grant a default judgment pursuant to Fed. R. Civ. P. 55(b). Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court must consider the following factors:

(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning the material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits.

Eitel v. McCool, 782 F.2d 1470, 1471-72 ...

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