Bertam Music Co et al v P & C Enterprises Inc et al

Filing 51

OPINION entered by Chief Judge Michael P. McCuskey on 07/05/2011. Defendant Pirtle's Motion for Summary Judgment 38 is DENIED. Plaintiff's Motion for Summary Judgment on Causes of Action 1-5 and 7-17 35 is GRANTED. Judgment is entere d in favor of Plaintiffs and against Defendants P & C and Pirtle. This Court accepts the Report and Recommendation 46 filed by Magistrate Judge David G. Bernthal in this case. Accordingly, the Motion to Dismiss 36 filed on behalf of defendant Lonnie E. Clark is DENIED. The final pretrial conference set for 8/12/11 at 1:30 PM and the Bench trial set for 8/29/11 at 9:00 AM are VACATED. See written opinion. (DE, ilcd)

E-FILED

Tuesday, 05 July, 2011 04:42:26 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
_____________________________________________________________________________
BERTAM MUSIC CO., FLYTE TYME
)
TUNES, EMI APRIL MUSIC INC., SOUP
)
SANDWICH MUSIC, GOLD & IRON MUSIC )
PUBLISHING, XM MUSIC, LELLOW
)
PRODUCTIONS INC., BOOK OF DANIEL
)
MUSIC, EMI VIRGIN MUSIC, INC., MASS
)
CONFUSION MUSIC, WB MUSIC CORP.,
)
Case No. 09-CV-2253
2000 WATTS MUSIC, INC., TONI ROBI
)
MUSIC, RODSONGS, JOBETE MUSIC CO., )
INC., BLACK BULL MUSIC, INC.,
)
CANCELLED LUNCH MUSIC, UNIVERSAL- )
POLYGRAM INTERNATIONAL
)
PUBLISHING, INC., DE SWING MOB, INC., )
ACROSS 110TH STREET PUBLISHING, )
AL B. SURE INDUSTRIES, INC., E/A MUSIC, )
INC., MONTY SEWARD PUB., CO., MAKE
)
IT BIG MUSIC, BROCKMAN ENTERPRISES,)
INC. (LIBREN MUSIC DIVISION), BRENDA )
RICHIE PUBLISHING, and UNCLE
)
RONNIE’S MUSIC COMPANY, INC.,
)
)
Plaintiffs,
)
v.
)
)
P & C ENTERPRISES, INC., LONNIE E.
)
CLARK, and J.W. PIRTLE,
)
)
Defendants.
)
OPINION
This case is before the court for ruling on the Motion for Summary Judgment (#35) filed by
Plaintiffs and the Motion for Summary Judgment (#38) filed by Defendant, J.W. Pirtle. This court
has carefully and thoroughly reviewed the arguments of the parties and the documents provided to
this court. Following this review, Defendant Pirtle’s Motion for Summary Judgment (#38) is
DENIED and Plaintiffs’ Motion for Summary Judgment on Causes of Action 1 - 5 and 7 - 17 (#35)
is GRANTED as to Defendants Pirtle and P & C Enterprises, Inc. This court also accepts the Report

and Recommendation (#46) filed by Magistrate Judge David G. Bernthal in this case. Accordingly,
the Motion to Dismiss (#36) filed on behalf of Defendant Lonnie E. Clark is DENIED.
FACTS1
Plaintiffs are the owners of valid copyrights in the 16 songs at issue in this case. Each
Plaintiff is a member of the American Society of Composers, Authors and Publishers (ASCAP) and
has granted ASCAP a nonexclusive right to license the nondramatic performances of their
copyrighted musical compositions.2
Defendants Lonnie E. Clark and J.W. Pirtle formed a corporation, Defendant P & C
Enterprises, Inc. (P & C). P & C owns and operates a radio station named WBCP. WBCP has been
broadcasting since 1989 and currently broadcasts over the airwaves and via the internet. WBCP
broadcasts music on a daily basis. P & C is a for profit corporation whose only business is the
operation of the radio station. Pirtle testified at his deposition that he and Clark are the two
stockholders in P & C. Clark was the president of P & C and Pirtle was, and still is, Secretary,
Treasurer and Vice President of P & C. Pirtle and Clark each have 50% of the voting rights in P &
C and agreed to take equal parts of the profits generated by P & C. Pirtle testified that P & C’s only
source of revenue is advertising on WBCP from local businesses and local churches. Pirtle testified
that he writes up the advertisements and Sam Britten, who Pirtle supervises, produces some of the

1

The facts are taken from the statements of undisputed facts and supporting documents
provided by the parties. This court has only included facts which are adequately supported by
the record in this case.
2

ASCAP is a clearinghouse for copyright owners and users and was organized to reduce
the transactional and enforcement costs that would otherwise be incurred in reaching agreements
with each individual copyright holder. See Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224,
1226 n.1 (7th Cir. 1991), citing Broadcast Music, Inc. v. Columbia Broadcasting Sys., 441 U.S. 1,
4-5 (1979).
2

advertisements. P & C generated revenues in excess of $100,000 per year during the years 1995
through 2002, but that has fallen off recently due to the economy.
Pirtle testified that his children own title to the real property and building where P & C’s
offices are located and where WBCP broadcasts. P & C pays rent to Pirtle for occupying the
property. Pirtle testified that he used the payments to pay down a mortgage on the property held by
“the bank.” Pirtle reported these rent payments as income on his personal tax return. Pirtle also
testified that he has loaned money to P & C and P & C owes him “probably 25,000” dollars.
Pirtle testified that Clark “pretty well managed everything at the radio station because he was
there almost every day.” This included supervising, hiring and firing employees. Pirtle testified that
he occasionally “runs” radio shows broadcast by WBCP and sometimes sits in on the show Straight
Talk Live. Pirtle is involved in the management of WBCP. He testified that employees at WBCP
would stop playing any music he told them to stop playing and that he could unplug music being
played at WBCP “at any time.” Pirtle testified that both he and Clark had the ability to supervise
and control the activities of P & C’s employees and “control everything that gets broadcast out of
that station.” Pirtle testified that both he and Clark paid bills for P & C and both of them signed
checks for P & C.
Sam Britten testified that he is the station coordinator for WBCP and “is the coordinator of
practically all of it” when determining what WBCP airs on a day-to-day basis. Britten confirmed
that both Clark and Pirtle have been “in a position to monitor what broadcasts are aired if [they] so
chose.” All of the employees in charge of pressing buttons to control what airs on WBCP report to
Clark and Pirtle. Britten testified that Clark and Pirtle controlled and supervised all of the
employees of WBCP on a day-to-day basis and “[p]retty much” controlled “all aspects of [WBCP].”

3

Pirtle testified that he, Clark and Britten determined the programming format of radio station WBCP,
which has remained generally the same for “[a]t least the last ten years.” Defendants have no record
or log, or any other document, detailing the programming on WBCP.
The evidence shows that WBCP entered into a local radio station license agreement with
ASCAP in May 1990. This agreement authorized Defendants to perform lawfully any and all
copyrighted musical compositions in the ASCAP repertory. On November 10, 1993, as a result of
Defendants’ failure to pay ASCAP the license fees provided for in the agreement, ASCAP sent a
notice to WBCP and terminated the license. The Notice stated that “any performances of
copyrighted musical compositions in [ASCAP’s] repertory without advance permission from the
respective members concerned will constitute infringements of the respective copyrights.”
In 1995, some of ASCAP’s members filed suit against Clark and P & C for willful copyright
infringement. See Flyte Time Tunes, et al. v. P & C Enterprises, Inc. et al., Case No. 95-CV-2208.
Pirtle was later added as a defendant. The case concluded with P & C, Clark and Pirtle entering into
a consent judgment providing that P & C would pay the judgment amount of $15,800. Clark and
Pirtle executed agreements to toll the statute of limitations as to all claims that could be asserted
against them subject to P & C’s payment of the full judgment amount of $15,800.
Subsequently, P & C was having difficulty meeting its responsibilities to pay ASCAP. On
May 22, 1997, Pirtle wrote a letter to ASCAP regarding P & C’s financial problems. Between
February 27, 1996, and December 1, 1999, Defendants, through WBCP, again broadcast
performances of works in the ASCAP repertory without a license. Consequently, on December 1,
1999, members of ASCAP sued Pirtle, Clark and P & C for copyright infringement. See Nick-OVal Music et al. v. Lonnie E. Clark, et al., Case No. 99-CV-2309. This case concluded with Pirtle,

4

Clark and P & C entering into a consent judgment for $10,000 on February 14, 2000. In February
2000, Defendants entered into a license agreement with ASCAP.
At some point prior to February 8, 2007, Defendants stopped paying license fees to ASCAP.
ASCAP notified Defendants, by regular mail and certified mail, return receipt requested, that P &
C’s failure to pay license fees was a substantial default of its license agreement and the license
would be terminated unless all payments were made. On March 4, 2008, ASCAP sent notice to
Defendants, both by regular mail and certified mail, return receipt requested, that their license was
terminated for their failure to pay the required fees. The letter stated that the balance due was
$5,180.50. ASCAP also warned Defendants that they no longer had permission to broadcast
performances of ASCAP’s members’ copyrighted musical compositions over WBCP and that any
subsequent performances of copyrighted musical compositions in the ASCAP repertory without
advance permission from copyright owners would constitute infringements of copyright. ASCAP
provided Defendants with a CD-ROM that contained an extensive, searchable database of works in
the ASCAP repertory.
On May 7 and May 8, 2008, Dan Hughes, a National Aircheck Field Recorder, recorded
broadcasts of WBCP. On January 26 and 27, 2009, Anna Flood, who is also a National Aircheck
Field Recorder, recorded broadcasts of WBCP. These recordings were transmitted electronically
to Robert A. Wexler, president of National Aircheck. Wexler converted these recordings of
WBCP’s over-the-air broadcasts to two compact discs. Wexler sent the two compact discs to
ASCAP’s offices in New York. Oleksander Kuzyszyn is an employee of ASCAP and analyzed the
recordings. Kuzyszyn is a professional musician, whose training enables him to read and write
musical notation and readily identify works he hears performed. Kuzyszyn listened to the recordings

5

of broadcasts made on May 8 and 9, 2008, and January 26 and 27, 2009. Kuzyszyn determined that
the following songs were on the compact disc of the broadcasts from May 8 and 9, 2008: “BEING
WITH YOU,” “YOU’RE NOT MY KIND OF GIRL,” “THERE’S HOPE,” “NO ONE,” and “LIKE
YOU’LL NEVER SEE ME AGAIN.” Kuzyszyn also determined that the following songs were on
the compact disc of the broadcasts from January 26 and 27, 2009: “THE LADY IN MY LIFE,”
“OVERJOYED,” “ALL THIS LOVE,” “LOVE OF MY LIFE,” “FOREVER MY LADY,” “SAY
AMEN,” “JESUS IS LOVE,” “DON’T YOU KNOW THAT” and “BREAKIN’ MY HEART
(PRETTY BROWN EYES).” Kuzyszyn also determined that the songs “I CARE 4 U” and “MY
BODY” were on the compact disc of the broadcasts from January 26 and 27, 2009. As noted
previously, the evidence shows that Plaintiffs own valid copyrights in these 16 songs and that they
have granted ASCAP the nonexclusive right to license the nondramatic public performance of these
songs.
The evidence shows that WBCP and its employees make no efforts to ensure that WBCP
does not broadcast performances of songs that are in ASCAP’s repertory. Britten testified that Clark
and Pirtle never even talked to him about it. Pirtle testified that he does not check on the music
being played on any regular basis. Britten testified that he has “no idea” whether the works WBCP
continues to broadcast include works in ASCAP’s repertory and admitted “it’s possible they could
be, yes.”
PROCEDURAL HISTORY
On October 13, 2009, Plaintiffs filed a Complaint (#1) against Defendants. Plaintiffs alleged
17 causes of action for copyright infringement based on Defendants’ public performances of
copyrighted musical compositions. All three Defendants, represented by the same attorney, filed

6

an Answer (#14, #15, #16) to the Complaint. There were numerous problems and delays in
conducting discovery in this case which caused Plaintiffs to file motions to compel.
On December 16, 2010, Defendants Pirtle and P & C filed a Statement Noting a Party’s
Death (#30) and stated that Defendant Clark died on December 10, 2010. This Statement was served
only upon counsel for Plaintiffs. On March 15, 2011, Plaintiffs filed a Motion to Extend the Rule
25(a)(1) Deadline for Filing a Motion to Substitute Party (#34). Plaintiffs stated that they have not
been notified, and their own investigation has not shown, that a petition for letters of office for Clark
or his estate has been filed. Plaintiffs asked for an order extending the time for the substitution of
parties until 56 days following the date that Defendants’ counsel identified the proper party to be
substituted. On April 8, 2011, United States Magistrate Judge David G. Bernthal entered a text
order and granted Plaintiffs’ Motion (#34). Judge Bernthal stated that Plaintiffs’ deadline to file a
substitution of party was extended to 56 days after Defendants’ counsel notifies Plaintiffs’ counsel
of the proper successor, representative or other special administrator substitute.
On March 22, 2011, Plaintiffs filed their Motion for Summary Judgment on Causes of Action
1 - 5 and 7 - 17 (#35). Plaintiffs stated that they were not seeking summary judgment of
infringement as to their sixth cause of action regarding the song, “HEAVEN KNOWS.” Plaintiffs
attached voluminous documentation in support of their claims regarding the 16 songs at issue. The
documentation included true and correct copies of the copyright certificates, assignments, notices
of termination, merger certificates and related documents for each of the 16 songs. Plaintiffs also
provided the sheet music for 14 of the songs (there is no sheet music for two of the songs) and
copies of each Plaintiff-copyright owner’s ASCAP membership agreement. In addition, Plaintiff
provided the two compact discs containing the recordings of WBCP’s broadcasts. Plaintiffs also

7

submitted the affidavit of Hugo Del Bove, Radio Accounts Manager for ASCAP. Del Bove stated
that, on the basis of financial information provided by Defendants, he estimated that if WBCP had
been properly licensed by ASCAP to date, license fees owed would total approximately $15,000,
including late payment charges of approximately $3,100.
On April 11, 2011, Defendants’ counsel filed a Motion to Dismiss (#36) asking that Clark
be dismissed as a Defendant due to his death. Defendants’ counsel attached a copy of Clark’s death
certificate. Also on April 11, 2011, Pirtle filed a Motion for Summary Judgment (#38). Pirtle
argued that he was entitled to summary judgment as to Plaintiffs’ infringement claims because there
was no basis for piercing P & C’s corporate veil and subjecting him to personal liability. Pirtle
attached his own affidavit as the only documentation in support of his motion. However, the
affidavit is not signed, dated or notarized. The motion to dismiss and motions for summary
judgment are fully briefed and ready for ruling.
ANALYSIS
I. MOTION TO DISMISS
This court will first consider the Motion to Dismiss (#36) seeking the dismissal of Defendant
Clark from this action based upon his death. The Motion to Dismiss stated that more than 90 days
had elapsed since service on Plaintiffs of the notice of Clark’s death and no motion for substitution
had been made by any party. Rule 25(a)(1) of the Federal Rules of Civil Procedure provides:
If a party dies and the claim is not extinguished, the court may
order substitution of the proper party. A motion for substitution may
be made by any party or by the decedent’s successor or
representative. If the motion is not made within 90 days after service

8

of a statement noting the death, the action by or against the decedent
must be dismissed.
Fed. R. Civ. P. 25(a)(1).
Plaintiffs filed a Response to the Motion to Dismiss (#43) on April 28, 2011. Plaintiffs noted
that the deadline for substituting a party for Defendant Clark was extended by Judge Bernthal to 56
days after Defendants’ counsel notified Plaintiffs’ counsel of the proper successor, representative
or other special administrator substitute. Plaintiffs stated that the deadline had not yet begun to run,
much less expired.
On May 9, 2011, Defendants’ counsel filed a Notice (#44). This Notice stated that, based
upon counsel’s inquiry of his clients, the remaining defendants in this cause, he “reasonably
believe[d] that no representative has or will be appointed for the deceased Defendant, Lonnie Clark.”
The Notice also stated that Clark’s surviving heirs are his spouse, Joan Clark, and two sons, Jeffery
L. Clark and Lonnie E. Clark II.
On May 25, 2011, Judge Bernthal entered a Report and Recommendation (#46) which
recommended denying the Motion to Dismiss (#36). Judge Bernthal noted that Defendants’ counsel
had not suggested in the Motion to Dismiss that Plaintiffs have been informed of a proper successor.
Judge Bernthal stated that “Rule 25 does not mandate that this Court dismiss the action against
Defendant Clark under these circumstances, where Plaintiffs have not been informed of a proper
successor.”
On June 13, 2011, Defendants filed their Response and Objections to Report and
Recommendation (#49). Defendants argued that, as stated in their Notice (#44), no representative
has or will be appointed for Clark. Therefore, they argued that they could not possibly know who

9

the representative is. Defendants argued that the action against Clark “has terminated and is at an
end since he no longer exists.” On June 30, 2011, Plaintiffs filed a Memorandum of Law in
Response to the Objections (#50). Plaintiffs argued that Defendants, and their counsel, do not have
standing to seek Clark’s dismissal from this action. Plaintiffs also argued that Defendants’ counsel
has been ordered to notify Plaintiffs’ counsel of Clark’s “proper successor, representative, or other
special administrator” and the claim that Defendants and their counsel do not know the identity of
the proper party to substitute strains credulity.
Rule 25(a) “provides that if the claim on which the suit is based survives the death (some
claims, such as claims of defamation, die with the claimant), the court may order the substitution of
the proper party, ordinarily the personal representative of the party who has died.” Atkins v. City
of Chicago, 547 F.3d 869, 870 (7th Cir. 2008).3 The court in Atkins noted that a party to a lawsuit
who dies has “ceased, upon his death, to be a party.” Atkins, 547 F.3d at 872. The court in Atkins
held that a notice of suggestion of death is not effective to start the 90-day clock for substituting the
proper party under Rule 25(a) unless it is served on the litigants and “nonparties with a significant
financial interest in the case, namely the decedent’s successors . . . or personal representative.”
Atkins, 547 F.3d at 873. The court also stated that “the cases are unequivocal that an obviously
interested party [such as the spouse of the decedent] must be served for the 90-day clock to start
running.” Atkins, 547 F.3d at 873.
In this case, Defendants’ counsel did not serve either of the notices regarding Clark’s death
on Clark’s spouse or sons. This court therefore agrees with Judge Bernthal’s conclusion that the 90-

3

This court notes that no one has suggested that Plaintiffs’ action against Clark has been
extinguished by his death.
10

day clock has not started running and there is no basis for granting Clark’s motion to dismiss. This
court therefore accepts the Report and Recommendation (#46) and concludes that the Motion to
Dismiss (#36) must be denied.
This does leave things in a rather uncertain posture, however, since Defendants’ counsel has
indicated that he reasonably believes “that no representative has or will be appointed for the
deceased Defendant, Lonnie Clark.” If Plaintiffs wait to be informed of the proper successor or
representative for Clark, it appears they could be waiting a very long time and the portion of this
case related to the claim against Clark would remain open and unresolved a very long time as well.

This court notes that, generally, the proper party for substitution is the person who has the
legal right and authority to defend against the claims brought against the deceased party. See Fariss
v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985). Rule 25(a) recognizes that the proper
party usually will be the representative of the decedent’s estate who has been appointed under state
law. The rule also uses the word “successor,” which indicates that a person may be substituted as
a party even though the person has not been formally appointed as a representative or administrator.
See 6 James Wm. Moore et al., Moore’s Federal Practice § 25.12[3] (Matthew Bender 3d ed. 2010).
Defendants have pointed out that Illinois law provides:
(2)

If a person against whom an action has been brought

dies and the cause of action survives and is not otherwise
barred, his or her personal representative shall be substituted
as a party. If no petition has been filed for letters of office for
the deceased’s estate, the court, upon motion of a person

11

bringing an action and after the notice to the party’s heirs or
legatees as the court directs and without opening an estate,
may appoint a special representative for the deceased party
for the purposes of defending the action. If a party elects to
have a special representative appointed under this paragraph
(2), the recovery shall be limited to the proceeds of any
liability insurance protecting the estate and shall not bar the
estate from enforcing any claims that might have been
available to it as counterclaims.
If a motion to substitute is not filed within 90 days after the death is
suggested of record, the action may be dismissed as to the deceased
party.
735 Ill. Comp. Stat. 5/2-1008(b)(2). Defendants appear to be suggesting that Defendant Clark must
be dismissed because no motion to substitute was filed within 90 days after Clark’s death was
suggested of record. However, Rule 25(a) governs the procedure for substitution following a party’s
death, even where the court must apply state substantive law. Servidone Constr. Corp. v. Levine,
156 F 3d 414, 416 (2d Cir. 1998). This court has already concluded that the 90 day time period set
out in Rule 25(a) has not begun to run. This court also agrees with Plaintiffs that Defendants’
counsel has been ordered to notify Plaintiffs’ counsel of the proper successor, representative or other
special administrator to substitute. This court therefore concludes that Defendants’ counsel must
make every attempt to expeditiously determine the proper successor or representative to substitute
in this case. However, if this information is not provided, Plaintiffs’ counsel also must make an

12

effort to determine the proper successor or representative so that a motion for substitution of parties
can be made as soon as possible and this case can be finally resolved.
II. MOTIONS FOR SUMMARY JUDGMENT
A. STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In ruling on a motion for summary
judgment, a district court “has one task and one task only: to decide, based upon the evidence of
record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Hoechst
Corp., 24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in
favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Burwell v.
Pekin Cmty. High Sch. Dist. 303, 213 F. Supp. 2d 917, 929 (C.D. Ill. 2002). However, the
nonmovant must produce more than “a mere scintilla of evidence” to support the position that a
genuine issue of material fact exists and “must come forward with specific facts demonstrating that
there is a genuine issue for trial.” Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008); see also
Anderson, 477 U.S. at 251-52.
B. PLAINTIFFS’ MOTION
As noted previously, Plaintiffs are seeking summary judgment as to claims 1 - 5 and 7 - 17
listed in their Complaint.
1. DEFENDANT CLARK
Defendants’ counsel filed an Objection to Plaintiffs’ Motion for Summary Judgment Against

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Defendant, Lonnie Clark, Deceased (#39). He argued that Plaintiffs are not entitled to proceed
against Clark until such time as a proper party has been duly substituted for him. This court agrees.
No ruling can be made regarding Defendant Clark until the procedure has been followed to
substitute a successor or representative to defend the action.
2. DEFENDANT PIRTLE
In his Response to Plaintiffs’ Motion for Summary Judgment (#40), Defendant Pirtle did not
respond to Plaintiffs’ Statement of Undisputed Facts. Instead, Pirtle argued that there is no genuine
issue as to any material fact with respect to his “personal liability.” Pirtle made the same argument
he made in his own Motion for Summary Judgment, that there is no basis for piercing P & C’s
corporate veil and imposing liability on him for any copyright infringement.4 This court agrees with
Plaintiffs that this argument clearly misses the mark.
Section 106(4) of the Copyright Act provides that the owner of a copyright has the exclusive
rights to do and to authorize the public performance of musical works. 17 U.S.C. § 106(4);
Broadcast Music, Inc. v. CDZ, Inc., 724 F. Supp. 2d 930, 934 (C.D. Ill. 2010). “To take advantage
of their rights under this law, performing rights societies such as ASCAP were formed to negotiate
contracts with radio stations, bars, nightclubs and similar establishments so that operators of such
establishments would not have to negotiate individual agreements with every composer whose songs
they intend to play.” Major Bob Music v. Heiman, 2010 WL 1904341, at *3 (W.D. Wis. 2010); see
also Broadcast Music, Inc. v. Star Amusements, Inc., 44 F.3d 485, 486 (7th Cir. 1995); Chi-Boy
Music v. Charlie Club, Inc., 930 F.2d 1224, 1226 n.1 (7th Cir. 1991). Under contracts with ASCAP
or similar organizations, operators must pay licensing fees to copyright holders for the right to play

4

Pirtle attached a copy of his unsigned, undated and unnotarized affidavit.
14

copyrighted music for the public. Broadcast Music, Inc., 44 F.3d at 486; Major Bob Music, 2010
WL 1904341, at *3. “When such entities fail or refuse to obtain a license from ASCAP but
nevertheless perform or play copyrighted material, their acts constitute an infringement upon the
copyright interests of the members of the organization.” Gnat Booty Music v. Creative Catering of
Wadhams, LLC, 761 F. Supp. 2d 604, 607 (E.D. Mich. 2011).
“A plaintiff claiming copyright infringement must establish two elements: ‘(1) ownership
of a valid copyright, and (2) copying of constituent elements of the work that are original.’” Janky
v. Lake County Convention & Visitors Bureau, 576 F.3d 356, 361 (7th Cir. 2009), quoting Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991); see also CDZ, Inc., 724 F. Supp. 2d
at 934. Copying of an original work occurs when one publicly performs the work without the
copyright owner’s authorization. Janky, 576 F.3d at 361; CDZ, Inc., 724 F. Supp. 2d at 934. The
law is settled that a radio broadcast constitutes a “performance” within the meaning and coverage
of copyright law.

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 161 (1975)

(“Broadcasters perform.”); Simpleville Music v. Mizell, 451 F. Supp. 2d 1293, 1296 (M.D. Ala.
2006); see also Joelsongs v. Shelley Broadcasting Co., 491 F. Supp. 2d 1080, 1083 (M.D. Ala.
2007); Jobete Music Co. v. Johnson Commc’ns, 285 F. Supp. 2d 1077, 1082-83 (S.D. Ohio 2003).
Pirtle has not challenged any of the facts set out by Plaintiffs to establish the elements of an
action for copyright infringement. Pirtle has not disputed that Plaintiffs own valid copyrights in the
songs played on WBCP and that WBCP played the songs without Plaintiffs’ authorization. Pirtle
has only claimed that he cannot be personally liable for the infringement because there is no basis
for piercing the corporate veil of P & C. The cases cited by Pirtle are distinguishable and do not
support his argument that he is not personally liable for copyright infringement in this case. See,

15

e.g., Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 378-79 (7th Cir.
2008) (no basis to pierce corporate veil to make officers of corporation liable for default judgment
for breach of contract entered against corporation); Source One Global Partners, LLC v. KGK
Synergize, Inc., 2009 WL 2192791, at *6-7 (N.D. Ill. 2009) (the plaintiff failed to make plausible
allegations that the president of corporation engaged in patent infringement).
This court concludes that Pirtle’s claim that there is no basis for piercing the corporate veil
is irrelevant in this copyright infringement action. Vicarious liability may be imposed for copyright
infringement even if the evidence is not sufficient to pierce the corporate veil. See Gary Friedrich
Enters., LLC v. Marvel Enters., Inc., 2011 WL 1142916, at *7 (S.D.N.Y. 2011); The Rottlund Co.
v. Wensmann Homes, Inc., 2003 WL 21517362, at *3 (D. Minn. 2003); see also In re Napster
Copyright Litig., 2006 WL 1348555, at *3 (N.D. Cal. 2006) (“degree of control required for
vicarious liability is less than that required to pierce the corporate veil”).
A defendant can be held vicariously liable for copyright infringement where he: (1) profits
directly from the infringement, and (2) has a right and ability to supervise the direct infringer. CDZ,
Inc., 724 F. Supp. 2d at 935, citing Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S.
913, 931 n.9 (2005). It is well settled that vicarious liability can be imposed even if the defendant
initially lacks knowledge of the infringement. Metro-Goldwyn-Mayer Studios, Inc., 545 U.S. at 931
n.9; CDZ, Inc., 724 F. Supp. 2d at 935. Liability for copyright infringement may be imposed on
individuals who “have the right and ability to supervise the infringing activity and have a financial
interest in the exploitation of copyrighted materials.” Jobete Music Co., 285 F. Supp. 2d at 1083-84.
This court agrees with Plaintiffs that the uncontroverted evidence in this case shows that
Pirtle had the right and ability to control the infringing activity of WBCP as well as a direct financial

16

interest in that activity.5 Based upon Pirtle’s deposition testimony and Britten’s deposition
testimony, it is clear that Pirtle determined the programming format of WBCP and had the right and
ability to control the programming at WBCP. Pirtle also supervised and controlled the employees
who put the programming on the air. In addition, Pirtle had a clear financial interest in the activities
of P & C and WBCP. Pirtle was entitled to one half of any profits made by P & C and P & C paid
rent to Pirtle, which Pirtle reported as income on his personal tax return. In addition, Pirtle testified
that P & C owes him “probably 25, 000” dollars.
Therefore, Plaintiffs have shown that Pirtle is vicariously liable for each of the 16 acts of
copyright infringement that occurred on May 8 and 9, 2008 and January 26 and 27, 2009. See CDZ,
Inc., 724 F. Supp. 2d at 936-37; Major Bob Music, 2010 WL 1904341, at *3; Jobete Music Co., 285
F. Supp. 2d at 1084. Plaintiffs’ Motion for Summary Judgment is granted as to Defendant Pirtle.
3. DEFENDANT P& C
In its Objections to Summary Judgment and Motion to Strike Plaintiffs’ Motion for Summary
Judgment and Attached Affidavits 3, 4, 5, 6, 7, 8 and II (#45), Defendant P & C did not dispute any
of the Undisputed Material Facts listed by Plaintiffs. Instead, P & C argued only that the affidavits
Plaintiffs attached to their Motion for Summary Judgment are defective and do not comply with
Rule 56 of the Federal Rules of Civil Procedure. P & C argued that the challenged affidavits failed
to state that the matters asserted were based on the personal knowledge of the affiant, failed to show
that the affiant would be competent to testify as to the matters asserted in the affidavit, and included

5

This court notes that this court has not considered any contrary statement included in
Pirtle’s unsigned, undated and unnotarized affidavit. It is well settled that a “plaintiff cannot
defeat a motion for summary judgment by ‘contradict[ing] deposition testimony with later-filed
contradictory affidavits.’” LaFary v. Rogers Group, Inc., 591 F.3d 903, 908 (7th Cir. 2010),
quoting Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir. 2005).
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inadmissible hearsay and conclusions of law and facts. P & C also complained that the attachments
to the affidavit of Steven Reynolds were not “sworn to or certified.” In addition, P & C complained
that some of the affiants were not disclosed as witnesses by Plaintiffs prior to the discovery deadline
and that none of the affiants were disclosed as expert witnesses. P & C did not cite any case law
authority in support of its bare-bones arguments.
In contrast, Plaintiffs filed a lengthy Memorandum in Response (#42), with attached exhibits,
and carefully discussed, with citations to relevant case law, the sufficiency of the affidavits they
provided in support of their Motion for Summary Judgment.
Rule 56 provides that “[a]n affidavit or declaration used to support or oppose a motion [for
summary judgment] must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4).6 This court has carefully reviewed the affidavits provided by Plaintiffs and
concludes that they are adequate to comply with Rule 56(c)(4). This court agrees with Plaintiffs
that, with the exception of the Reynolds affidavit, which provided this court with copies of exhibits
that have been separately authenticated, each affiant expressly states that his or her testimony is
based upon personal knowledge and explains the basis for that knowledge. This court further agrees
that P & C has no basis for challenging the documents attached to Reynolds’ affidavit. Reynolds,
an attorney of record in this case, is fully competent to provide the court with exhibits. Two of the
challenged exhibits are transcripts of depositions and P & C’s counsel was present when the
depositions were taken. The depositions were also certified by the court reporter, and this court

6

Rule 56 was amended, effective December 1, 2010. This court notes that P & C cited
to and quoted the previous version of Rule 56.
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agrees with Plaintiffs that P & C’s challenge to the deposition transcripts is frivolous and borders
on bad faith. See Fenje v. Feld, 301 F. Supp. 2d 781, 789 (N.D. Ill. 2003), aff’d 398 F.3d 620 (7th
Cir. 2005) (opposing party not acting in good faith in raising an objection to a document the party
knows is authentic). The other exhibits are affidavits, documents provided by Defendants in
discovery, discovery responses, public court records and documents Pirtle identified during his
deposition. This court concludes there is no legitimate basis for questioning the authenticity of any
of these documents. Moreover, the language P & C relied on in making this challenge has been
omitted from the current version of Rule 56. “The requirement that a sworn or certified copy of a
paper referred to in an affidavit or declaration be attached to the affidavit or declaration is omitted
as unnecessary given the requirement in subdivision (c)(1)(A) that a statement or dispute of fact be
supported by materials in the record.” Fed. R. Civ. P. 56, Committee Notes, 2010 Amendments.
This court further agrees with Plaintiffs that there is no basis to strike any of the affidavits
based upon a discovery violation. This court agrees with Plaintiffs that all but two of the affiants
were disclosed prior to the discovery deadline. The two remaining affiants were disclosed more than
one month prior to the filing of the Motion for Summary Judgment. It appears the post-deadline
disclosures were justified. Plaintiffs stated that Richard H. Reimer, in-house counsel for ASCAP,
was disclosed because an ASCAP paralegal left ASCAP’s employ and Robert A. Wexler was
disclosed shortly after being identified as one of six individuals who would testify regarding the
chain of custody of the recordings made of WBCP’s broadcasts. In any case, this court agrees with
Plaintiffs that P & C cannot show that it suffered any prejudice because Defendants did not seek to
depose any individuals disclosed by Plaintiffs in this case.
In addition, this court agrees with Plaintiffs that none of the affidavits contain expert

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testimony so there was no need for Plaintiffs to disclose expert witnesses in this case. The only
affidavit which arguably contains opinions is the affidavit of Kuzyszyn. However, his recognition
of the songs performed in the recordings contained on the compact discs is based upon his direct
factual observation of the songs through hearing and memory recognition. Therefore, at most, his
affidavit contained lay opinions based upon his own first-hand knowledge. See Payne v. Pauley,
337 F.3d 767, 772 (7th Cir. 2003) (personal knowledge may include reasonable inferences grounded
in observation or other first hand experience); see also Big Hat Brooks v. Prosecutors, 565 F. Supp.
2d 981, 986 n.4 (S.D. Ind. 2008) (pursuant to Rule 701 of the Federal Rules of Evidence, lay opinion
testimony that is “rationally based on the perception of the witness” is allowable in support of a
motion for summary judgment). This court further notes that other courts have accepted an affidavit
from Kuzysyzn as support for a claim of copyright infringement. See Joelsongs, 491 F. Supp. 2d
1080, 1083 (M.D. Ala. 2007); Simpleville Music, 451 F. Supp. 2d at 1296; Jobete Music Co., 285
F. Supp. 2d at 1082-83. In addition, the court in Varry White Music v. Banana Joe’s of Akron, Inc.,
65 U.S.P.Q.2d 1855, 1859 (N.D. Ohio 2002) rejected a challenge to an affidavit essentially identical
to Kuzysyzn’s affidavit, finding that it plainly established the affiant’s competency and personal
knowledge.
P & C’s challenge to the affidavits filed in support of Plaintiffs’ Motion for Summary
Judgment, which this court has found without merit, is its only response to the Motion. Therefore,
because P & C has not provided a response to any of the facts set out by Plaintiffs, this court may
properly deem them admitted. See Waldridge, 24 F.3d at 922; Munyon v. Henson, 2010 WL
480881, at *2 (C.D. Ill. 2010).
The facts set out by Plaintiffs are clearly sufficient to show that P & C is liable for copyright

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infringement. The facts show that P & C owns and operates WBCP and that WBCP broadcast
copyrighted music without authorization. P & C does not maintain any record or log, or any other
document, detailing the programming on WBCP. Therefore, P & C cannot contradict the evidence
that 16 copyrighted songs were played on May 8 and 9, 2008 and January 26 and 27, 2009. P & C
also has not contradicted the evidence that the songs were played after its license with ASCAP was
terminated for failure to pay the required fees. Plaintiffs also provided ample documentation to
show that they are the owners of valid copyrights in these songs. This court notes that the copyright
certificates provided by Plaintiffs are prima facie evidence establishing their ownership of the
copyrights. See Jobete Music Co., 285 F. Supp. 2d at 1082; Varry White Music, 65 U.S.P.Q.2d at
1858.
Based upon the undisputed facts provided by Plaintiffs, this court concludes that Plaintiffs
are entitled to summary judgment against Defendant P & C.
4. RELIEF AWARDED
This court must now determine the relief Plaintiffs are entitled to from Pirtle and P & C.
1. STATUTORY DAMAGES
Plaintiffs have requested statutory damages. Section 504(c)(1) of the Copyright Act provides
that “the copyright owner may elect, at any time before final judgment is rendered, to recover,
instead of actual damages and profits, an award of statutory damages for all infringements involved
in the action, with respect to any one work, for which any one infringer is liable individually, or for
which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or
more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). Section 504(c)(2) provides
that where the infringement is proven to have been committed willfully, the court may increase the

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award of statutory damages to not more than $150,000. 17 U.S.C. § 504(c)(2). Alternatively, if the
court finds that the infringement was committed by an infringer who was not aware and had no
reason to believe that its acts constituted copyright infringement, the court may reduce the award
of statutory damages to a sum of not less than $200. 17 U.S.C. § 504(c)(2); see also CDZ, Inc., 724
F. Supp. 2d at 937.
In determining an appropriate amount of damages, this court can consider various factors
such as “the difficulty or impossibility of proving actual damages, the circumstances of the
infringement, and the efficacy of the damages as a deterrent to future copyright infringement.” ChiBoy Music, 930 F.2d at 1229; Major Bob Music, 2010 WL 1904341, at *4. When the infringement
is willful, the statutory damages award may be designed to penalize the infringer and to deter future
violations. Chi-Boy Music, 930 F.2d at 1229-30; Major Bob Music, 2010 WL 1904341, at *4.
This court agrees with Plaintiffs that the infringement in this case was willful. Defendants
had twice before been sued for copyright infringement. The first lawsuit concluded with P & C
entering into a consent judgment with Pirtle and Clark signing tolling agreements subject to the full
amount of the judgment being paid. The second lawsuit ended with a consent judgment against
Clark, Pirtle and P & C. Obviously, Pirtle and P & C were aware of the consequences of copyright
infringement. The record also shows that, prior to this lawsuit, ASCAP repeatedly notified
Defendants that failure to pay licensing fees would result in the termination of their license. Once
the license was terminated for failure to pay the fees, Defendants were notified that broadcasting
music in the ASCAP repertory would be infringing the copyrights of ASCAP’s members. This court
finds that all of these facts show that Defendants were on notice of their need to obtain a license to
prevent copyright infringement at the radio station. See CDZ, Inc., 724 F. Supp. 2d at 938-39.

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“[E]vidence that notice has been accorded to the alleged infringer before the specific acts found to
have constituted infringement occurred is perhaps the most persuasive evidence of willfulness.”
Chi-Boy Music, 930 F.2d at 1227, Major Bob Music, 2010 WL 1904341, at * 4.
Despite this notice, Defendants made absolutely no efforts to keep WBCP from playing
music in ASCAP’s repertory. This court finds that Defendants acted willfully in violating Plaintiffs’
rights. See CDZ, Inc., 724 F. Supp. 2d at 939.
Plaintiffs have requested an award of statutory damages in the amount of $5,000 for each of
the 16 instances of copyright infringement, for a total award of $80,000. As noted, Del Bove, Radio
Accounts Manager for ASCAP, estimated that if WBCP had been properly licensed by ASCAP to
date, license fees owed would total approximately $15,000, including late payment charges of
approximately $3,100.
Because the statutory damages rule is designed to deter wrongful conduct, courts have
routinely ordered damages well in excess of, and typically around three times the amount the
defendant would have paid if the defendant had properly obtained a license. Broadcast Music, Inc.
v. Pub Dayton, LLC, 2011 WL 2118228, at * 4 (S.D. Ohio 2011); Gnat Booty Music, 761 F. Supp.
2d at 609; see also Major Bob Music, 2010 WL 1904341, at *4. The Seventh Circuit has upheld
this approach. See Chi-Boy Music, 930 F.2d at 1229. The reasoning behind the de facto treble
damages award “is to put defendants ‘on notice that it costs less to obey the copyright laws than to
violate them.’” Pub Dayton, LLC, 2011 WL 2118228, at * 4, quoting Sailor Music v. IML Corp.,
867 F. Supp. 565, 570 n.8 (E.D. Mich. 1994). This court therefore concludes that a proper award
of statutory damages in this case is $48,000, or $3,000 for each of the 16 instances of copyright
infringement. This court recognizes that this is less than Plaintiffs have requested. However, it is

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slightly more than three times the estimated license fees which would have been owed by
Defendants and this court concludes that this award satisfies the compensatory and deterrent goals
of the Copyright Act. See Jobete Music Co., 285 F. Supp. 2d at 1091-92.
2. INJUNCTION
Plaintiffs have also requested permanent injunctive relief against Defendants. Section 502(a)
of the Copyright Act provides that “[a]ny court having jurisdiction of a civil action arising under this
title may . . . grant temporary and final injunctions on such terms as it may deem reasonable to
prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). “Where there is a ‘showing
of past infringement and a substantial likelihood of future infringement,’ courts have not hesitated
to grant permanent injunctions.” Gnat Booty Music, 761 F. Supp. 2d at 609, quoting Jobete Music,
285 F. Supp. 2d at 1092. This court concludes that Plaintiffs have made a clear showing of past
infringement in this case and, frankly, not just a substantial likelihood but in actuality almost a
certainty of future infringement. WBCP continues to broadcast music and makes no efforts to
ensure that it is not broadcasting copyrighted music without authorization.
However, in considering whether to grant permanent injunctive relief, this court must
consider: (1) whether Plaintiffs have suffered or will suffer an irreparable injury; (2) whether there
are inadequate remedies at law available to compensate for the injury; (3) the balance of hardships,
and (4) the public interest. Sierra Club v. Franklin County Power of Ill., LLC, 546 F.3d 918, 935
(7th Cir. 2008); CDZ, Inc., 724 F. Supp. 2d at 940.
In considering all of these factors, this court finds that a permanent injunction is appropriate
under the circumstances of this case. This court concludes that the infringement of Plaintiffs’
copyrights has caused them to suffer irreparable injury. See Major Bob Music, 2010 WL 1904341,

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at *5 (“unauthorized performances of copyrighted musical compositions take away the copyright
owner’s ability to control its copyrighted works”). In addition, this court concludes that the
remedies at law may not be adequate if Plaintiffs are forced to continually monitor WBCP and
litigate further infringements. See CDZ, Inc., 724 F. Supp. 2d at 940; Major Bob Music, 2010 WL
1904341, at *5. As far as the balance of hardships, this court concludes that the hardship to
Defendants in obtaining an ASCAP license is not great, as they have previously obtained a license
from ASCAP. See CDZ, Inc., 724 F. Supp. 2d at 940. On the other hand, the hardship to Plaintiffs
is much greater as they would have to spend more time and money monitoring WBCP to ensure
Defendants do not continue to infringe ASCAP-licensed musical compositions. See CDZ, Inc., 724
F. Supp. 2d at 940. In fact, it “is an accepted equitable principle that a court does not have to
balance the equities in a case where the defendant’s conduct has been willful.” Major Bob Music,
2010 WL 1904341, at *5, quoting Sierra Club, 546 F.3d at 935. Finally, there is no evidence that
the public would be harmed by an injunction requiring Defendants to comply with copyright laws.
See Major Bob Music, 2010 WL 1904341, at *6. This court concludes that the public interest favors
preventing the infringement of valid copyrights. Therefore, all of the relevant factors favor the
imposition of a permanent injunction. Moreover, given the evidence in the record of Defendants’
complete failure to make any attempts to prevent playing music in the ASCAP repertory on WBCP,
there is a very real threat of continuing infringement, so permanent injunctive relief is warranted.
See CDZ, Inc., 724 F. Supp. 2d at 940; see also Gnat Booty Music, 761 F. Supp. 2d at 609.
3. ATTORNEY’S FEES AND COSTS
Plaintiffs have requested attorney’s fees and costs. Section 505 of the Copyright Act
provides that “the court may also award a reasonable attorney’s fee to the prevailing party as part

25

of the costs.” 17 U.S.C. § 505. Attorney’s fees may be awarded in order to encourage the assertion
of colorable copyright claims, to deter infringement and to make the plaintiff whole. Roulo v. Russ
Berrie & Co., 886 F.2d 931, 942 (7th Cir. 1989). A finding of willful infringement will support an
award of attorney’s fees. Chi-Boy Music, 930 F.2d at 1230; CDZ, Inc., 724 F. Supp. 2d at 939.
This court concludes that Plaintiffs are entitled to their reasonable attorney’s fees and costs
in litigating this case. An award of attorney’s fees and costs is appropriate in order to deter any
further infringement on the part of Defendants, particularly because they have engaged in willful
infringement. See CDZ, Inc., 724 F. Supp. 2d at 940. Further, attorney’s fees are appropriate
because Defendants were successfully sued for copyright infringement twice before and have not,
in this action, asserted any non-frivolous defenses or provided any explanation for their decision to
perform copyrighted songs after their license with ASCAP was terminated. See Major Bob Music,
2010 WL 1904341, at *7. In fact, this court concludes that the record in this case supports a finding
that Defendants treated the copyright laws with disdain. See Chi-Boy Music, 930 F.2d at 1230.
Under these circumstances, attorney’s fees are an appropriate means of compensating Plaintiffs for
enforcing copyright laws and penalizing Defendants for willfully violating the law with no
reasonable basis or non-frivolous justification. See Major Bob Music, 2010 WL 1904341, at *7.
The amount of Plaintiffs’ reasonable fees will be determined once Plaintiffs’ counsel submits
an affidavit setting forth the attorney’s fees and costs billed in this case, Plaintiffs’ counsel is
allowed 14 days from the date of this order to do so. Defendants P & C and Pirtle are allowed 14
days to file any objections to the amount of the attorneys’ fees requested.
4. POST-JUDGMENT INTEREST
Plaintiffs have also requested post-judgment interest on all amounts awarded, pursuant to

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28 U.S.C. § 1961. This court concludes that Plaintiffs are entitled to post-judgment interest. See
Pub Dayton, LLC, 2011 WL 2118228, at *5.
C. PIRTLE’S MOTION
Pirtle’s Motion for Summary Judgment in his favor (#38) is based solely on his argument
that there is no basis for piercing P & C’s corporate veil. This court has already determined that this
argument is irrelevant because, based upon the facts and the applicable case law, Pirtle is vicariously
liable for the copyright infringement and Plaintiffs are entitled to summary judgment against Pirtle
on their claims. Accordingly, Pirtle’s Motion for Summary Judgment (#38) is DENIED.
IT IS THEREFORE ORDERED THAT:
(1) Defendant Pirtle’s Motion for Summary Judgment (#38) is DENIED.
(2) Plaintiffs’ Motion for Summary Judgment on Causes of Action 1 - 5 and 7 - 17 (#35) is
GRANTED. Judgment is entered in favor of Plaintiffs and against Defendants P & C and Pirtle.
Defendants are liable for statutory damages in the amount of $48,000.00. This court also enters a
permanent injunction, pursuant to 17 U.S.C. § 502, prohibiting Defendants P & C and Pirtle and/or
their officers, agents, servants, employees, attorneys, heirs, successors, assigns, and other persons
who are in active concert or participation with them from publicly performing any and all of the
musical compositions in the ASCAP repertory over WBCP or any other station or any other
broadcast facility owned or operated by them, unless they shall have obtained permission in advance
of the performance from the copyright owners involved or a license from ASCAP, their performing
rights society. Defendants P & C and Pirtle are further ordered to pay Plaintiffs’ costs, including
attorneys’ fees, pursuant to 17 U.S.C. § 505. Plaintiffs are allowed 14 days to file an affidavit
setting out the amount of the attorneys’ fees reasonably incurred in this case. Defendants P & C and

27

Pirtle are allowed 14 days to file any objections to the amount of the attorneys’ fees requested.
Defendants P & C and Pirtle are also ordered to pay post-judgment interest on all amounts awarded,
pursuant to 28 U.S.C. § 1961.
(3) This court accepts the Report and Recommendation (#46) filed by Magistrate Judge
David G. Bernthal in this case. Accordingly, the Motion to Dismiss (#36) filed on behalf of
Defendant Lonnie E. Clark is DENIED.
(4) All matters have been determined by the court except for a final resolution regarding
Plaintiffs’ claims against Defendant Clark. Clark is deceased and no successor or representative has
yet been substituted as a party in his place. Until a successor or representative has been substituted,
this court cannot proceed regarding the claims against Defendant Clark. Accordingly, the final
pretrial conference set for August 12, 2011, at 1:30 p.m. and the bench trial set for August 29, 2011,
at 9:00 a.m. are hereby VACATED.
ENTERED this 5th day of July, 2011
s/ Michael P. McCuskey
MICHAEL P. McCUSKEY
CHIEF U.S. DISTRICT JUDGE

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