BROADCAST MUSIC, INC. et al v. DIAMOND INVESTMENTS, INC. et al
ORDER ON PENDING MOTIONS - Defendants' "Motion to Set Aside Default Judgment" and "Motion for Leave to File Belated Motion for Extension of Time to Respond to Plaintiffs' Motion for Summary Judgment" are accordingly both DENIED. The Court's April 17, 2013, judgment is affirmed. Signed by Judge Sarah Evans Barker on 6/6/2013. (CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
BROADCAST MUSIC, INC., et. al,
DIAMOND INVESTMENTS, INC., et. al,
ORDER ON PENDING MOTIONS
(Docket Nos. 59 & 60)
On April 17, 2013, after noting that Defendants had allowed a substantial period of time to
pass without filing a response, the Court granted Plaintiffs’ unopposed motion for summary
judgment and entered judgment in favor of Plaintiffs. The very next day, Defendants filed a
“Motion to Set Aside Default Judgment”1 together with a “Motion for Leave to File Belated Motion
for Extension of Time to Respond to Plaintiffs’ Motion for Summary Judgment.” Those motions
are now before the Court.
In asking the Court to set aside its judgment, Defendants’ lawyer, Steven B. Geller, states
that he did not become aware of Plaintiffs’ summary judgment motion filed on November 16, 2012,
until April 3, 2013.2 On April 15, 2013, Attorney Geller sent an e-mail to Plaintiffs’ counsel
Contrary to the title of Defendants’ motion, the Court’s judgment was not a “default
The Court’s national e-mail tracking database reveals that the Notice of Electronic
Filing for Docket No. 52 (Plaintiffs’ summary judgment motion) and Docket No. 53 (Plaintiffs’
supporting brief) were successfully delivered to Attorney Geller on November 16, 2012, at
email@example.com, which is the e-mail address he provided to the Court for service via
inquiring whether Plaintiffs would object if Defendants filed a belated response, but as luck (bad
luck, that is) would have it, on April 17, 2013, the Court issued its ruling on Plaintiffs’ summary
judgment motion before he had the chance to file anything. Attorney Geller cites no rule or other
authority pursuant to which he contends the Court has authority to provide the relief he seeks, but
submits that, if the Court sets the judgment aside and allows Defendants to file a belated response,
he “believes” that Defendants will be able to show that there are genuine issues of material fact
precluding summary judgment in favor of Plaintiff.
Plaintiffs object to both motions. They respond that Defendants have failed to present any
evidence or argument sufficient to warrant setting aside the judgment under Fed. R. Civ. P. 60(b).
They remind the Court that Defendants’ conduct during the course of this litigation has been rife
with delays and failures, and they ponder why, if Attorney Geller first learned of their summary
judgment motion on April 3, 2013 (some five months after it was filed), he delayed another two
weeks until April 15, 2013 before contacting their counsel to discuss his belated response.3
In addition, Plaintiffs argue that allowing Defendants to file a belated response would be
futile. They submit that the facts which Defendants claim they would present to the Court – facts
relating to the occupancy of Juke Box Live and BMI’s alleged failure to return a phone call – have
nothing to do with the elements necessary to establish copyright infringement and are, thus,
immaterial. Defendants did not respond to this argument. In fact, Defendants did not attempt to
refute any of Plaintiffs’ arguments in opposition to the two pending motions, for they filed no reply
It is similarly curious why, if Attorney Geller believed that there was some sort of
problem with service to his e-mail account through CM-ECF or that he inadvertently missed the
Court’s e-mails, he did not immediately file some kind of motion or other notice with the Court.
We recognize that even though the Court’s notices were delivered to Attorney Geller’s email address, Attorney Geller may have overlooked or inadvertently deleted them without reading
them. Even so, we are not persuaded that such inadvertence (or neglect) justifies setting aside the
judgment here. Given Defendants’ pattern of failures and delays in this litigation, as well as
Defendants’ failure to address Fed. R. Civ. P. 60(b), the apparent immateriality of the two facts that
Defendants would present to the Court in attempt to defeat Plaintiffs’ summary judgment motion
if permitted to file a belated response, and Defendants’ failure to refute any of Plaintiffs’ arguments
in opposition to the two pending motions, the Court finds that there are no grounds to set aside the
judgment previously entered.
Defendants’ “Motion to Set Aside Default Judgment” and “Motion for Leave to File Belated
Motion for Extension of Time to Respond to Plaintiffs’ Motion for Summary Judgment” are
accordingly both DENIED. The Court’s April 17, 2013, judgment is affirmed.
IT IS SO ORDERED.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Anthony V. Disomma
STEVEN B. GELLER ATTORNEY AT LAW
Steven B. Geller
STEVEN B. GELLER LAW OFFICE
Peter Jon Prettyman
TAFT STETTINIUS & HOLLISTER LLP
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