Octave Music Publishing Corp et al v. Seafood Peddler of San Rafael, Inc. et al

Filing 34

STIPULATION AND ORDER re 32 DISMISSING CASE. Court will retain jurisdiction until 3/10/2012 to enforce the settlement. Signed by Magistrate Judge Howard R. Lloyd on 6/9/2010. (hrllc2, COURT STAFF) (Filed on 6/9/2010)

GAY CROSTHWAIT GRUNFELD - 121944 LISA ELLS - 243657 ROSEN, BIEN & GAL VAN, LLP 315 Montgomery Street, 10th Floor San Francisco, alifornia 94104-1823 Telephone : [phone] Facsimile : [phone] grunfeld rbg-law .co m m ail : r lls@rbg- aw .co m e

*E-FILED 06-09-2010*

E

Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OCTAVE MUSIC PUBLISHING CORP . ; BOURNE CO . ; MUSIC SALES CORP . ; HAMPSHIRE HOUSE PUBLISHING CORP . ; SONY/ATV HARMONY ; OLDE CLOVER LEAF MUSIC; RAY HENDERSON MUSIC CO ., INC . ; WB MUSIC CORP. ; ARTHUR HAMILTON d/b/a HARMONY GRACE PUBLISHING and EDWIN H . MORRIS & CO ., INC ., Plaintiffs,
V.

Case No. CV-095846-HRL STIPULATION OF SETTLEMENT AND REQUEST FOR DISMISSAL WITH RETENTION OF JURISDICTION AND ORDER THEREON

SEAFOOD PEDDLER OF SAN RAFAEL, INC . and ALPHONSE SILVESTRI, Defendants .

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(377173-11

STIPULATION OF SETTLEMENT AND REQUEST FOR DISMISSAL WITH RETENTION OF JURISDICTION AND ORDER THEREON - CASE NO . CV-095846-HRL

Plaintiffs Octave Music Publishing Corp . ; Bourne Co . ; Music Sales Corp.; Hampshire House Publishing Corp . ; Sony/ATV Harmony ; Olde Clover Leaf Music ; Ray Henderson Music Co ., Inc.; WB Music Corp . ; Arthur Hamilton d/b/a Harmony Grace Publishing and Edwin H . Morris & Co ., Inc. ("Plaintiffs"), and Defendants Seafood Peddler of San Rafael, Inc . ("Seafood 5 Peddler") and Alphonse Silvestri ("Silvestri"), hereby stipulate : 1. Plaintiffs were, on the dates set forth in Schedule A to the Complaint, the respective owners of valid copyrights in the eight (8) songs listed in Schedule A to the Complaint . The Complaint alleges that Plaintiffs' songs were publicly performed by Defendants' agents at the establishment known as Seafood Peddler, located at 100 Yacht Club Drive in San Rafael, in the State of California on August 21, 2009, without permission from Plaintiffs or their performing rights licensing organization, the American Society of Composers, Authors, and Publishers ("ASCAP") . 2. Plaintiffs, Seafood Peddler, and Silvestri now wish to settle the copyright infringement claims asserted in this action as well as any other potential copyright claims that Plaintiffs or other ASCAP members may have against Seafood Peddler and Silvestri as of the date of this Stipulation . 3. Seafood Peddler and Silvestri hereby agree to pay Plaintiffs the amount of Fifty Thousand Dollars ($50,000 .00) in full satisfaction of all claims arising out of Plaintiffs' Complaint and all other potential copyright infringement claims that Plaintiffs or other ASCAP members could assert against Seafood Peddler and/or Silvestri arising from the unauthorized performance of their copyrighted music at the Seafood Peddler establishment . 4. Plaintiffs Seafood Peddler and Silvestri agree that the $50,000 .00 settlement amount shall be paid as follows : (a) $10,000 .00 shall be paid on or before June 10, 2010 ; (b) $8,666 .66 shall be paid six months thereafter on December 10, 2010 ; (c) $8,666 .67 shall be paid six months thereafter on June 10, 2011 ; (d) $8,666 .67 shall be paid six months thereafter on December 10, 2011 ; and (d) a balloon payment of $14,000 .00 shall be paid on or before February 10, 2012 . 28 1

[377173-1[

STIPULATION OF SETTLEMENT AND REQUEST FOR DISMISSAL WITH RETENTION OF JURISDICTION AND ORDER THEREON - CASE NO . CV-095846-HRL

5.

Each payment provided for above shall be made in the form of a certified, cashier's

or bank check drawn on a California bank, made payable to ASCAP and delivered to Gay Crosthwait Grunfeld, Esq . at Rosen, Bien & Galvan LLP, 315 Montgomery Street, 10th Floor, San Francisco, California 94104-1823, or to anyone else designated by ASCAP, on or before the respective dates specified above . Twenty-one days prior to the due date for the installment payment, Plaintiffs' representative shall send a reminder notice to Defendant Alphonse Silvestri, 100 Yacht Club Drive, San Rafael CA 94901-405 1 . 6. Upon written notice from Plaintiffs' representative or their undersigned attorneys that any payment due pursuant to paragraphs 4 & 5 above is delinquent, Seafood Peddler and Silvestri shall have (10) calendar days in which to cure such delinquency . If the delinquency is not cured within (10) days of the written notice, Plaintiffs may immediately and without further 12 notice enter judgment providing, inter alia, that Seafood Peddler and Silvestri willfully infringed Plaintiffs' copyrights and for payment to Plaintiffs of $55,000 .00, less any payments previously made by Seafood Peddler and Silvestri pursuant to paragraph 5 above . 7. Contemporaneously with the execution of this Stipulation, Seafood Peddler and Silvestri agree to execute a current 2010 ASCAP license agreement commencing June 1, 2010 for his business known as Seafood Peddler . ASCAP license fees pursuant to such license agreement for the twelve month term of the license are included in the stipulated settlement amount provided for in paragraph 3 above . Seafood Peddler and/or Silvestri agree to abide by all of the terms and conditions of the ASCAP license . In accordance with the terms of the license agreement, Seafood Peddler and/or Silvestri may exercise the termination clause of the license agreement, subject to ASCAP's confirmation that Defendants are no longer performing or using music requiring an ASCAP license . 8. Plaintiffs hereby agree that, if the payments are made as specified in paragraphs 4 & 5 above, they will file a Dismissal With Prejudice of Defendant Seafood Peddler and Silvestri with this Court, all parties to bear their own costs, including attorneys' fees, and serve a copy of said Dismissal With Prejudice on Defendants within ten (10) business days of clearance of the 28
[377173-1)

final installment payment .

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STIPULATION OF SETTLEMENT AND REQUEST FOR DISMISSAL WITH RETENTION OF JURISDICTION AND ORDER THEREON - CASE NO . CV-095846-HRL

9.

The undersigned acknowledge that they have been advised of and are familiar with

the provisions of California Civil Code section 1542, which provides : A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR . 11 . 8 The foregoing constitutes the entire Stipulation of Plaintiffs, Seafood Peddler, and Silvestri . No changes or modifications to this Stipulation shall be effective unless made in writing and signed by Plaintiffs, Seafood Peddler, and Silvestri . Wherefore, Plaintiffs, Seafood Peddler, and Silvestri request that the Court : a. Dismiss this action against Seafood Peddler and Silvestri and retain complete jurisdiction over this action until March 10, 2012 (thirty (30) days after the last settlement installment payment is due pursuant to paragraph 4, supra), and reopen this action upon a showing by Plaintiffs that the settlement has not been completed and that further litigation is necessary ; or, in the alternative, b. Dismiss this action against Seafood Peddler and Silvestri with prejudice on March 10, 2012, if Plaintiffs have not made a showing that the settlement has not been completed ; such dismissal to be without costs or attorneys' fees to any party .

!/!

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P77173-11

STIPULATION OF SETTLEMENT AND REQUEST FOR DISMISSAL WITH RETENTION OF JURISDICTION AND ORDER THEREON - CASE NO . CV-095846-HRL

Dated : June 2-, 2010 4 5 6 7

OCTAVE MUSIC PUBLISHING CORP . ; BOURNE CO . ; MUSIC SALES CORP . ; HAMPSHIRE HOUSE PUBLISHING CORP . ; SONY/ATV HARMONY ; OLDE CLOVER LEAF MUSIC ; RAY HENDERSON MUSIC CO ., INC . ; WB MUSIC CORP . ; ARTHUR HAMILTON d/b/a HARMONY GRACE PUBLISHING and EDWIN H . MORRIS & CO., INC. BY : RICHARD H . IMER Senior Vice President-Legal Services American Society of Composers, Authors and Publishers, attorney-in-fact for Plaintiffs Octave Music Publishing Corp ., et al.

Dated : June j_, 2010

SEAFOOD PEDDLER OF SAN RAFAEL, INC .

APPROVED AS TO FORM AND CONTENT : Dated : June L, 2010 ROSEN, BIEN & GAL VAN, LLP By : G CROS W I GR j At rneys for "laintiffs FELD

Dated : June L, 2010

LAW OFFICE By :

M _F' A ~, IAH EYTAN Attorne s for Defendants ·F OOD PEDDLER OF SA 4 RAFAEL, INC . and ALPHONSE SILVE TRI
A

41 :'

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]377173 .1]

ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED . The case is dismissed. The court will retain jurisdiction until March 10, 2012 to enforce the settlement. June 9 Dated :, 2010 HOWARD R. LLOYD United States Magistrate Judge 4
STIPULATION OF SETTLEMENT AND REQUEST FOR DISMISSAL WITH RETENTION OF JURISDICTION AND ORDER THEREON - CASE NO . CV-095846-HRL