Broadcast Music, Inc. v. Sports Bar, Inc.

145 F.R.D. 349, 27 U.S.P.Q. 2d (BNA) 1716, 1992 U.S. Dist. LEXIS 20270, 1992 WL 395862
CourtDistrict Court, D. Delaware
DecidedDecember 21, 1992
DocketCiv. A. No. 92-482-JLL
StatusPublished
Cited by1 cases

This text of 145 F.R.D. 349 (Broadcast Music, Inc. v. Sports Bar, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broadcast Music, Inc. v. Sports Bar, Inc., 145 F.R.D. 349, 27 U.S.P.Q. 2d (BNA) 1716, 1992 U.S. Dist. LEXIS 20270, 1992 WL 395862 (D. Del. 1992).

Opinion

LATCHUM, Senior District Judge.

OPINION

I. INTRODUCTION

Before the Court is the motion of defendant Sports Bar, Inc. d/b/a Legends Sports Bar (“Legends Sports Bar”) under Federal Rule of Civil Procedure 60(b) to vacate the default judgment entered against it. On August 17, 1992, plaintiffs Broadcast Music, Inc., et al, (“BMI”) commenced this action against Legends Sports Bar by filing a complaint which alleged twenty-two separate claims of copyright infringement under the United States Copyright Act of 1976, 17 U.S.C. § 101 et seq., and sought statutory damages for each separate claim. Complaint of BMI, Docket Item (“D.I.”) 1. Plaintiff BMI promptly served defendant Legends Sports Bar’s registered agent for the service of process with a summons and a copy of the complaint as required by Rule 4 of the Federal Rules of Civil Procedure. See Return of Service, D.I. 3. Defendant Legends Sports Bar failed to answer, move, plead, or otherwise respond to the complaint within the 20 day period provided in Rule 12 of the Federal Rules of Civil Procedure. On October 15,1992, BMI filed a request for default pursuant to Federal Rule of Civil Procedure 55(a). Request For Entry Of Default, D.I. 5. On that same day the Clerk of the Court entered a default against defendant Legends Sports Bar. Order of Default, D.I. 6. Thereafter, BMI filed a motion under Federal Rule of Civil Procedure 55(b)(2), supported by affidavits, seeking the imposition of a default judgment against Legends Sports Bar. Motion For Default Judgment And Memorandum of Law And Affidavits In Support Thereof, D.I. 7, 8, 9, 10, 11, 12. On October 16, 1992, the Court entered a default judgment against defendant Legends Sports Bar and awarded plaintiff BMI. the [350]*350following: (1) statutory damages in the amount $22,000.00 ($1,000 for each separate claim of copyright infringement); (2) reasonable attorney’s fees and court costs in the amount of $697.50; and (3) a permanent injunction against Legends Sports Bar enjoining it from further copyright infringement. Order Of Default Judgment, D.I. 7. Defendant Legends Sports Bar now petitions the Court to vacate the default judgment. For the reasons stated more fully below, defendant’s motion is denied.

II. STANDARD IN THE THIRD CIRCUIT FOR VACATING A DEFAULT JUDGMENT UNDER RULE 60(b)

Under the well-established law in the Third Circuit, the district courts must consider four factors in determining whether to vacate a default judgment: (1) whether the lifting of the default would prejudice the plaintiff; (2) whether the defendant has a prima facie meritorious defense; (3) whether the defaulting defendant’s conduct is excusable or culpable; and (4) the effectiveness of alternative sanctions. Emcasco Insurance Co. v. Sambrick, 834 F.2d 71, 73 (3d Cir.1987); see also International Brotherhood Local Union No. 313 v. Skaggs, 130 F.R.D. 526, 528 (D.Del.1990). However, the United States Court of Appeals for the Third Circuit has held in U.S. v. $55,518.05 In U.S. Currency, 728 F.2d 192 (3d Cir.1984), that where, as a threshold matter, the defendant seeking to set aside the default judgment has not established a prima facie meritorious defense, the district court should not vacate the default judgment. Id. at 195. In $55,-518.05 In U.S. Currency, Judge Higginbotham stated, “The threshold question in this case is whether [defendant] Golden has established a meritorious defense. This is the critical issue because without a meritorious defense Gold could not win [at] trial. Therefore, there would be no point in setting aside the default judgment ... if Golden could not demonstrate the possibility of his winning.” Id.; see also United States v. Single Story Double Wide Trailer, 727 F.Supp. 149, 152-53 (D.Del.1989).

III. APPLICATION OF THESE RULES TO THE PRESENT CASE

Applying these principles to the present case, it becomes readily apparent that the defendant Legends Sport Bar has not satisfied its burden under Rule 60(b). The only defense asserted by Legends Sports Bar in its motion is that of indemnification from a third party. In its motion, defendant states “Legends Sports Bar believes it has a meritorious defense to all or part of this action due to an indemnification agreement that exists between Legends Sports Bar’s previous owner, Paul Ogden, and the present owner, Timothy Starobynski, wherein Ogden agreed to pay all corporate debts of Legends Sports Bar, which includes any debt for a public performance rights license.” Motion For Relief From Default Judgment Pursuant To Fed. R.Civ.P. 60(b), D.I. 13 at 3. The defense asserted by Legends Sports Bar is clearly not a prima facie meritorious defense to this suit. The Third Circuit stated in $55,-518.05 In U.S. Currency, “[t]he a showing of a meritorious defense is accomplished when ‘allegations of defendant’s answer, if established [at] trial, would constitute a complete defense to the action.’ ” $55,-518.05 In U.S. Currency, 728 F.2d at 195 (citations omitted). Under this standard, the defense of indemnification asserted by defendant Legends Sports Bar is not a complete defense because it does not have any impact on plaintiff BMI’s right to recover. The defense of indemnification only establishes defendant’s right to recover from a third party in a collateral litigation.

Consideration of the other factors of the Third Circuit’s test for vacating a default judgment, further reveals the impropriety of vacating the default judgment. Plaintiff BMI conceded at the oral argument held on December 2, 1992, that the only prejudice it would suffer by the Court’s vacating the default judgment would be to postpone BMI’s recovery. But setting aside the default judgment would only postpone the inevitable because defendant Legends Sports Bar has not asserted a prima facie meritorious defense. Moreover, the record [351]*351in this case reveals that Legends Sports Bar ignored BMI’s repeated requests to cease its unauthorized public performances of BMI-licensed music and to enter into a licensing agreement with BMI. See Declaration of Lawrence E. Stevens, D.I. 9. Therefore, the inference to be drawn from the record is that the defendant’s failure to answer, move, plead, or otherwise respond was not the result of excusable neglect.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
145 F.R.D. 349, 27 U.S.P.Q. 2d (BNA) 1716, 1992 U.S. Dist. LEXIS 20270, 1992 WL 395862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broadcast-music-inc-v-sports-bar-inc-ded-1992.