Broadcast Music, Inc. et al v. Imagination Industries, Inc. et al

Filing 29

ORDER that the entry of default against the defendants is vacated. The motion for default judgment 22 is denied. The motion to set aside judgment 26 is granted. The magistrate judge is ordered to progress this case. Ordered by Judge Joseph F. Bataillon. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BROADCAST MUSIC, INC.,
UNDERACHIEVER MUSIC,
UNICHAPPELL MUSIC INC., JOHN
FARRAR MUSIC, SONY/ATV SONGS
LLC, EMI BLACKWOOD MUSIC INC.,
HINDER MUSIC CO., a Division of Hinder
Publishing, LLC; and HINDER
PUBLISHING, LLC,

8:12CV128

ORDER

Plaintiffs,
vs.
IMAGINATION INDUSTRIES, INC. d/b/a
COCO BONGO, and CASEY ROWE,
individually;
Defendants.
This matter is before the court on defendants’ motions to set aside default
judgment against each of them. Filing No. 22 and Filing No. 26. Plaintiffs filed this
action alleging copyright infringement. Filing No. 1. Summons were served on the
defendants. Plaintiffs filed a motion for the clerk’s entry of default judgment, Filing No.
19, on the basis that defendants failed to appear or otherwise respond to the complaint.
The Clerk of Court entered default. Filing No. 21. Thereafter, the plaintiffs moved for
default judgment. Filing No. 22. Following such filing, defendants filed an answer to the
complaint. Filing No. 25.

In addition, the defendants filed a motion to set aside the

judgment, a brief in support, and an affidavit. Filing No. 26, Filing No. 27 and Filing No.
28. The plaintiffs did not respond.
In their responses, defendants contend that they believed their legal counsel,
Hugh Abrahamson, filed an answer and responded to this lawsuit. However, plaintiffs
allege that Mr. Abrahamson did not file an answer; and on June 13, 2012, defendants
contacted new counsel, William F. McGinn, to file an answer and request that this court
set aside the default. The court has carefully reviewed the pleadings in this case and
finds that good cause exists to set aside default in this case. See Fed. R. Civ. P. 55(c)
and 60(b). It does not appear that the parties acted in bad faith and that failure to file

the answer and address the motion to default does not appear to be inexcusable on the
part of the defendants. The court does not believe prejudice will occur to the plaintiffs
nor will the delay impact the judicial proceedings. See Feeney v. AT & E, 472 F.3d 560,
562-63 (8th Cir. 2006).

Accordingly, the court will strike the default and order the

magistrate judge to file a progression order moving this case forward.
THEREFORE, IT IS ORDERED:
1.

The entry of default against the defendants is vacated;

2.

The motion for default judgment, Filing No. 22, is denied;

3.

The motion to set aside judgment, Filing No. 26, is granted; and

4.

The magistrate judge is ordered to progress this case.

Dated this 24th day of July, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

2