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Broadcast Music Inc., Et v. Antigua Cantina & Grill

February 4, 2013

BROADCAST MUSIC INC., ET AL., PLAINTIFFS,
v.
ANTIGUA CANTINA & GRILL, LLC D/B/A ANTIGUA CANTINA & GRILL; AND FELIPE OLVERA, JR., INDIVIDUALLY, DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This matter came before the court on October, 5, 2012, for hearing on plaintiff's motion for default judgment. (Doc. No. 10.) Karen Frank, Esq. appeared telephonically for plaintiffs. No appearance was made by, or on behalf of, any defendant. Having considered all written materials submitted with respect to the motion, and after hearing oral argument, the undersigned recommends that the motion for default judgment be granted.

PROCEDURAL BACKGROUND

Plaintiffs commenced this action on May 3, 2012, by filing a complaint and paying the required filing fee. Despite being served with process, defendants failed to appear in this action, (Doc. Nos. 7), and pursuant to plaintiffs' request the Clerk of the Court entered defendants' default. (Doc. Nos. 8 & 9.) On August 17, 2012, plaintiffs filed the motion for default judgment now pending before the court, (Doc. No. 10), and on August 24, 2012, noticed it to be heard before the undersigned pursuant to Local Rule 302(c)(19). (Doc. No. 12.)

The matter came before the undersigned on October 5, 2012. (Doc. No. 14.) Despite being served with all papers filed in connection with the motion, there was no opposition filed nor appearance made by or on behalf of either defendant at the October 5, 2012 hearing.*fn1

(Doc. No. 10-9; Doc. No. 12.)

LEGAL STANDARD

Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Products, 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987). Where damages are liquidated (i.e., capable of ascertainment from definite figures contained in the documentary evidence or in detailed affidavits), judgment by default may be entered without a damages hearing. See Dundee, 722 F.2d at 1323. Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993). /////

Granting or denying default judgment is within the court's sound discretion, see Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986), and the court is free to consider a variety of factors in exercising that discretion, see Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The court may consider such factors as: (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 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, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice, ¶ 55-05[2], at 55-24 to 55-26).

ANALYSIS

Here, according to the allegations found in the complaint plaintiff, Broadcast Music, Inc. ("BMI"), has been granted the right to license the public performance rights of 7.5 million copyrighted musical compositions, including those at issue in this action. The other nonBMI plaintiffs are the owners of the copyrighted musical compositions. Defendant Antigua Cantina & Grill, LLC is a limited liability company organized under the laws of the State of California, and which operates the Antigua Cantina Grill located in Sacramento, California. Defendant Felipe Olvera, Jr., is the managing member of the Antigua Cantina & Grill, LLC. (Compl. (Doc. No. 1) at 2-3.*fn2

Attached to plaintiffs' complaint, and incorporated within, is a "Schedule" identifying the musical compositions whose copyrights were infringed by defendants and provides information on the six claims of copyright infringement at issue in this action. Each numbered claim identified in the Schedule has the following eight lines of information: Line 1 provides the claim number; Line 2 lists the title of the musical composition related to that claim; Line 3 identifies the writer(s) of the musical composition; Line 4 identifies the publisher(s) of the musical composition and the plaintiff(s) in this action pursuing the claim at issue; Line 5 provides the date on which the copyright registration was issued for the musical composition; Line 6 indicates the copyright registration number(s) for the musical composition; Line 7 shows the date(s) of infringement; and Line 8 identifies where the infringement occurred.*fn3 (Id. at 6-7.)

Plaintiffs' complaint alleges against defendants six claims of willful copyright infringement, in violation of 17 U.S.C. § 101, et seq., and requests that defendants be enjoined from infringing on plaintiffs' copyrighted music, be ordered to pay statutory damages pursuant to 17 U.S.C. § 504(c), and be ordered to pay reasonable attorney's fees and costs pursuant to 17 U.S.C. § 505. (Compl. (Doc. No. 1) at 1-5.)

Through its motion for default judgment, plaintiffs seeks entry of default judgment enjoining defendants from infringing on plaintiffs' copyrighted musical compositions and ordering defendants to pay $18,000.00 in statutory damages pursuant to 17 U.S.C. § 504(c), $6,425 in attorney's fees and costs pursuant to 17 U.S.C. § 505 and post-judgment ...


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