Aaron Sperske v. Ariel Rosenberg et al

Filing 46

ORDER DENYING DEFENDANT Defendant Ariel Rosenbergs MOTION FOR RELIEF FROM DEFAULT JUDGMENT 39 by Judge Otis D Wright, II. (lc). Modified on 12/7/2012 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AARON SPERSKE,
v.

Plaintiff,

ARIEL ROSENBERG a/k/a ARIEL PINK
et al.,

Case No. 2:12-cv-07034-ODW(JCx)
ORDER DENYING DEFENDANT’S
MOTION FOR RELIEF FROM
DEFAULT JUDGMENT [39]

Defendants.

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The Court is in receipt of Defendant Ariel Rosenberg’s Motion for Relief from

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Default Judgment under Federal Rule of Civil Procedure 60(b). (ECF No. 39.) For

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the reasons discussed below, the Court DENIES Rosenberg’s Motion.

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Plaintiff Aaron Sperske filed a complaint against Defendants Rosenberg,

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Kwang Nam Koh, Kenneth John Gilmore, and Ariel Pink’s Haunted Graffiti

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(“APHG”) on August 15, 2012, for declaratory relief and accounting under the

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Copyright Act of 1976, 17 U.S.C. § 101 et seq.; declaratory relief under the California

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Uniform Partnership Act of 1994, Cal. Corp. Code §§ 16100–962; an accounting of

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partnership assets and proceeds; and breach of fiduciary duty. (ECF No. 1.) In this

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complaint, Sperske alleged that he and Defendants “formed a musical group and

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entered into an oral partnership agreement under California law, for the purpose of

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carrying on the business of musical performing . . . [as a] recording group” called

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APHG. (Compl. ¶ 9.) Sperske served two copies of this complaint on Rosenberg, one

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for Rosenberg personally and one for Rosenberg in his role as an agent of APGH, on

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August 31, 2012. (ECF Nos. 5, 7; Hirsch Decl. ¶ 3.)

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After APHG failed to respond to the complaint, Sperske requested the Clerk of

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Court to enter default against APHG on September 20, 2012. (ECF No. 13.) The

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Clerk subsequently entered default on APHG on September 21, 2012. (ECF No. 16.)

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After two orders to show cause for lack of prosecution, Sperske filed a noticed motion

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for default judgment against APHG on October 19, 2012. (ECF Nos. 18, 23, 28.) The

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Court granted the motion for default judgment on October 23, 2012. (ECF No. 34.)

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On November 12, 2012, Rosenberg filed the instant Motion, arguing that default

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judgment against APHG is improper because (1) APHG is not a partnership; (2)

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APHG was not validly served with the complaint or the motion for entry of default

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judgment; and (3) neither Rosenberg nor the other Defendants were given sufficient

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time to oppose the motion for entry of default judgment. (ECF No. 36.)

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The Court disagrees with Rosenberg. A partnership is “the association of two

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or more persons to carry on as coowners of a business for profit . . . whether or not the

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persons intend to form a partnership.”

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Rosenberg’s contention that APHG is simply the name that Rosenberg has used for

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his band since 1996, APHG is a partnership.

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Rosenberg’s own statement in his answer to Sperske’s complaint:

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admits that [he], [Sperske], Koh, Gilmore, and Cole M. Greif-Neill formed a musical

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group in or about 2008.”

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partnership, especially since these parties collectively signed a multi-album recording

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contract as APHG in 2009. (Rosenberg Decl. ¶ 4.) Rosenberg may have started

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APHG in 1996 and thought of himself as the sole “owner” of the band, but if this was

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true, Rosenberg would have signed the recording contract by himself. (Id. ¶ 2.)

Cal. Corp. Code § 16202.
(Mot. 2.)

(Rosenberg Answer ¶ 9.)

Despite

This is supported by
“[Rosenberg]

This is enough to form a

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Since APHG was a partnership, it was validly served with the complaint when

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Rosenberg received two copies of the document. Since Rosenberg was a partner in

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APHG, he was also APHG’s agent. See Cal. Corp. Code § 16301(1) (“Each partner is

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an agent of the partnership for the purpose of its business.”)

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///

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As for the alleged deficient service of the motion for entry of default judgment,

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the Court finds that service was proper. APHG’s own neglect in responding to

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Sperske’s complaint and defending itself in this action validly gave rise to the default

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judgment.

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“negligence, carelessness and inadvertent mistake.” Bateman v. U.S. Postal Service,

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231 F.3d 1220, 1224 (9th Cir. 2000) (citing Pioneer Inv. Servs. Co. v. Brunswick

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Assocs. Ltd. P’ship, 507 U.S. 380, 381 (1993)). Determining whether neglect is

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excusable requires consideration of four factors: (1) the danger of prejudice to the

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opposing party; (2) the length of the delay and its potential impact on the proceedings;

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(3) the reason for the delay; and (4) whether the movant acted in good faith. Bateman,

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231 F.3d at 1223–24. Since APHG was served with the complaint on August 31,

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2012, it had ample time to respond to Sperske’s allegations and oppose any filed

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motions. Because of APHG’s lengthy and unjustified absence, the Court granted

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Sperske’s motion for default judgment. There is no reason why this default judgment

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should be vacated.

This neglect is not excusable.

“[E]xcusable neglect” contemplates

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And finally, even if the Court were to agree with Rosenberg’s assertion that

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APHG is not a valid partnership, Rosenberg would have no standing to bring this

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current Motion before the Court. The default judgment was entered against APHG,

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not Rosenberg personally. If APHG is not a valid partnership, then Rosenberg is not

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its agent and cannot speak on its behalf.

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Accordingly, Rosenberg’s Motion is hereby DENIED.

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IT IS SO ORDERED.

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December 6, 2012

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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