Girlsongs & Warner Bros. v. Constance & Ezell Starkey

108 F.R.D. 275, 1984 U.S. Dist. LEXIS 23004, 1985 Copyright L. Dec. (CCH) 25,791
CourtDistrict Court, N.D. California
DecidedOctober 4, 1984
DocketNo. C-84-1656 RFP
StatusPublished

This text of 108 F.R.D. 275 (Girlsongs & Warner Bros. v. Constance & Ezell Starkey) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Girlsongs & Warner Bros. v. Constance & Ezell Starkey, 108 F.R.D. 275, 1984 U.S. Dist. LEXIS 23004, 1985 Copyright L. Dec. (CCH) 25,791 (N.D. Cal. 1984).

Opinion

ORDER

PECKHAM, Chief Judge.

The defendants Constance and Ezell Starkey have moved to set aside the default judgment entered against them in this case on May 18, 1984. For the reasons set forth below, the court denies the defendants’ motion.

[276]*276FACTS

The plaintiffs, on April 2, 1984, filed a complaint against Constance and Ezell Starkey alleging copyright infringements under the United States Copyright Act, 17 U.S.C. sections 101-810. The defendants are former owners of a disco in Santa Clara. The plaintiffs alleged that on April 16 and 17, 1983, unauthorized performances of copyrighted songs occurred at defendants’ disco.

The plaintiffs served each defendant with a summons and a copy of the complaint on April 13, 1984 by substitute service. The defendants failed to respond in any way to the complaint, and on May 17, 1984, the plaintiffs requested an entry of default. The plaintiffs served the defendants with the request by mail that same day, and default was entered against the defendants on May 18, 1984.

On May 31, 1984, the plaintiffs filed their notice of motion and motion for entry of default judgment and served the defendants by mail. On July 2, 1984, at the hearing on plaintiffs’ motion, this court entered a default judgment against the defendants for $2579.50 ($2000 in damages, $119.50 in costs, and $460 in attorneys fees). On July 16,1984, a writ or execution was issued, and the writ was served on the escrow office at the Bank of America on July 23, 1984.

On July 24, 1984, the defendants moved to set aside entry of default and the default judgment.

INTRODUCTION

Once a default judgment has been entered, Federal Rule of Civil Procedure rule 60(b) governs whether the court should set aside the judgment. While the decision to set aside a default judgment is within the trial court’s sound discretion, Madsen v. A.J. Bumb, 419 F.2d 4, 6 (9th Cir.1969), the Ninth Circuit, in Schwab v. Bullocks, 508 F.2d 353, 355 (9th Cir.1974), set out three considerations a court should keep in mind when deciding to grant or deny a Rule 60(b) motion:

First, Rule 60(b) is remedial in nature and therefore must be liberally applied [citations omitted]. Second, default judgments are generally disfavored; whenever it is reasonably possible, cases should be decided on their merits [citations omitted]. Third, and as a consequence of the first two considerations, ‘[w]here timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.’ [citations omitted]. ■

Keeping these limitations in mind, the court nevertheless denies the defendants’ motion.

DISCUSSION

The defendants rely on F.R.C.P. rule 60(b)(1)

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Bluebook (online)
108 F.R.D. 275, 1984 U.S. Dist. LEXIS 23004, 1985 Copyright L. Dec. (CCH) 25,791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/girlsongs-warner-bros-v-constance-ezell-starkey-cand-1984.