Broadcast Music, Inc. et al v. Rider Rock's Holding, LLC et al

Filing 15

DECISION AND ORDER granting # 13 Plaintiff's Motion for Default Judgment against Defendants. Clerk of the Court is directed to enter a default judgment in Plaintiffs' favor against Defendants in the amount of $28,650 plus statutory interest pursuant to 28 U.S.C. § 1961; and it is ORDERED that Defendants Rider Rocks Holding, LLC, d/b/a Rocks and its agents, servants, employees, and all persons acting under their permission and authority, and Lance J. Rider, individually, is permanently enjoined and restrained from infringing, in any manner, the copyrighted musical compositions licensed by BMI, pursuant to 17 U.S.C. § 502. Signed by Chief Judge Glenn T. Suddaby on 7/14/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BROAD. MUSIC, INC.; EMI BLACKWOOD
MUSIC, INC.; PEERMUSIC III LTD.;
SCREEN GEMS-EMI MUSIC, INC.; and
WARMER-TAMERLANE PUBL’G CORP.,

1:16-CV-1398
(GTS/ATB)

Plaintiffs,
v.
RIDER ROCK’S HOLDING LLC d/b/a Rocks; and
LANCE J. RIDER,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

HARRIS BEACH PLLC
Counsel for Plaintiffs
99 Garnsey Road
Pittsford, NY 14534

NEAL L. SLIFKIN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this copyright infringement action filed by Broadcast
Music, Inc., EMI Blackwood Music, Inc., Peermusic III Ltd., Screen Gems-EMI Music, Inc., and
Warner-Tamerlane Publishing Corp. (“Plaintiffs”), against Rider Rock’s Holding, LLC, and
Lance J. Rider (“Defendants”), is Plaintiffs’ motion for default judgment pursuant to Fed. R. Civ.
P. 55(b). (Dkt. No. 13.) For the reasons stated below, Plaintiffs’ motion is granted.

I.

RELEVANT BACKGROUND
A.

Plaintiffs’ Complaint

Liberally construed, Plaintiffs’ Complaint asserts the following four claims against
Defendants: (1) a claim of copyright infringement of “And When I Die” by Laura Nyro; (2) a
claim of copyright infringement of “Georgia On My Mind” by Stuart Gorrell and Hoagy
Carmichael; (3) a claim of copyright infringement of “Hello It’s Me” by Todd Rundgren; and (4)
a claim of copyright infringement of “She Talks to Angels” by Chris Robinson and Rich
Robinson. (See generally Dkt. No. 1.) Generally, in support of this claim, Plaintiffs’ Complaint
alleges as follows: (1) Broadcast Music, Inc. (“BMI”) “reached out to Defendants more than
seventy (70) times by phone, mail, and e-mail” to “educate Defendants as to their obligations
under the Copyright Act”; (2) BMI sent Defendants Cease and Desist Notices, providing formal
notice to Defendants that they needed to cease all use of BMI-licensed music in Defendants’
establishment; and (3) Defendants’ entire course of conduct has caused and is causing Plaintiffs
“great and incalculable” damage by continuing to provide unauthorized public performances of
works in the BMI Repertoire at the Establishment. (Id.)
B.

Plaintiffs’ Service of Their Complaint and Defendants’ Failure to Answer

On November 23, 2016, Plaintiffs served their Complaint on Defendants. (Dkt. No. 3.)
As of the date of this Decision and Order, Defendants have filed no Answer to that Complaint.
(See generally Docket Sheet.)
C.

Clerk’s Office’s Entry of Default and Defendants’ Non-Appearance

On January 12, 2017, Plaintiffs filed a request entry of default. (Dkt. No. 9.) On January
18, 2017, the Clerk of the Court entered default against Defendants, pursuant to Fed. R. Civ. P.

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55(a). (Dkt. No. 10.) As of the date of this Decision and Order, Defendants have not appeared
and attempted to cure that entry of default. (See generally Docket Sheet.)
D.

Plaintiffs’ Motion for Default Judgment and Defendants’ Non-Response

On February 21, 2017, Plaintiffs filed a motion for default judgment against Defendants,
pursuant to Fed. R. Civ. P. 55(b). (Dkt. No. 13.) As of the date of this Decision and Order,
Defendants have filed no response to that motion. (See generally Docket Sheet.)
Generally, in support of their motion for default judgment, Plaintiffs argue as follows: (1)
Defendants’ default establishes their liability; (2) because Plaintiffs should not be required to
bring a lawsuit to protect their rights, having to do so shows irreparable injury, (3) monetary
damages do not provide an adequate reward for this type of copyright infringement; and (4) it is
in the public’s interest to ensure future copyright holders are protected from infringers; thus
favoring an injunction. (Dkt. No. 13, Attach. 11.) Familiarity with the particular grounds for
Plaintiffs’ motion for default judgment against Defendants is assumed in this Decision and
Order, which is intended primarily for review of the parties.
II.

RELEVANT LEGAL STANDARD
“Federal Rule of Civil Procedure 55 provides a two-step process that the Court must

follow before it may enter a default judgment against a defendant.” Robertson v. Doe, 05-CV7046, 2008 WL 2519894, at *3 (S.D.N.Y. June 19, 2008). “First, under Rule 55(a), when a party
fails to ‘plead or otherwise defend . . . the clerk must enter the party's default.’” Robertson, 2008
WL 2519894, at *3 (quoting Fed. R. Civ. P. 55[a]). “Second, pursuant to Rule 55(b)(2), the
party seeking default judgment is required to present its application for entry of judgment to the
court.” Id. “Notice of the application must be sent to the defaulting party so that it has an

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opportunity to show cause why the court should not enter a default judgment.” Id. (citing Fed.
R. Civ. P. 55[b][2]). “When an action presents more than one claim for relief . . . , the court may
direct entry of a final judgment as to one or more, but fewer than all, claims or parties . . . if the
court expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b).
When a court considers a motion for the entry of a default judgment, it must “accept[ ] as
true all of the factual allegations of the complaint . . . .” Au Bon Pain Corp. v. Artect, Inc., 653
F.2d 61, 65 (2d Cir. 1981) (citations omitted). “However, the court cannot construe the damages
alleged in the complaint as true.” Eng’rs Joint Welfare, Pension, Supplemental Unemployment
Benefit and Training Funds v. Catone Constr. Co., Inc., 08-CV-1048, 2009 WL 4730700, at *2
(N.D.N.Y. Dec. 4, 2009) (Scullin, J.) (citing Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183
F.3d 151, 155 [2d Cir. 1999] [citations omitted]). “Rather, the court must ‘conduct an inquiry in
order to ascertain the amount of damages with reasonable certainty.’” Eng’rs Joint Welfare,
Pension, Supplemental Unemployment Benefit and Training Funds, 2009 WL 4730700, at *2
(quoting Alcantara, 183 F.3d at 155 [citation omitted]). This inquiry “involves two tasks: [1]
determining the proper rule for calculating damages on such a claim, and [2] assessing plaintiff's
evidence supporting the damages to be determined under this rule.” Alcantara, 183 F.3d at 155.
Finally, in calculating damages, the court “need not agree that the alleged facts constitute a valid
cause of action . . . .” Au Bon Pain, 653 F.2d at 65 (citation omitted).
III.

ANALYSIS
A.

Liability

After carefully considering Plaintiffs’ unopposed motion, the Court is satisfied that,
under the circumstances, Plaintiffs have met their modest threshold burden of establishing

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entitlement to default judgment against Defendants on the issue of liability.1 The Court notes
that Plaintiffs’ motion would survive even the heightened scrutiny appropriate on a contested
motion. For example, for the reasons stated above in Part I of this Decision and Order, the Court
finds that due notice of this action has been given to Defendants. However, no Answer has been
filed and no one has appeared on behalf of Defendants. In addition, the Clerk of the Court has
already entered default against Defendants, and Plaintiffs have served Defendants with their
motion for the issuance of default judgment. Defendants have still neither responded to the
motion nor appeared in this action. Finally, the Court finds that the factual allegations of
Plaintiffs’ Complaint are sufficient to state a claim upon which relief can be granted. See
W.A.W. Van Limburg Stirum et al. v. Whalen et al., 90-CV-1279, 1993 WL 241464, at *4
(N.D.N.Y. June 29, 1993) (Munson, J.) (holding that, “[b]efore judgment can be entered, the
court must determine whether plaintiff’s factual allegations are sufficient to state a claim for
relief . . . the court may exercise its discretion to require some proof of the facts that must be
established in order to determine liability”) (internal quotation marks omitted).
For each of these alternative reasons, the Court grants Plaintiffs’ motion for the issuance
of default judgment on the issue of liability pursuant to Fed. R. Civ. P. 55(b).

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In this District, a movant’s burden with regard to an unopposed motion is
lightened such that, in order to succeed, the movant need only show its entitlement to the relief
requested in its motion, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determines
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1 n.1 (N.D.N.Y. Oct.
30, 2009) (Suddaby, J.) (collecting cases).
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B.

Requested Relief

After carefully considering Plaintiffs’ unopposed motion, the Court is satisfied that,
under the circumstances, Plaintiffs’ have met their burden of establishing a valid basis for the
statutory damages they seek. The Court notes that, while a hearing to fix the amount of damages
may be conducted,2 a hearing is not required where the Court has found that there is a basis for
the damages specified in the default judgment.3 Here, the Court makes such a finding.
For example, in support of its damages request, Plaintiffs have provided, inter alia, the
Declarations of Brian Mullaney4 and Neil Slifkin,5 which demonstrate that Defendants are
indebted to Plaintiffs in the amount of $24,000 in statutory damages (specifically, $6,000 on
each of Plaintiffs’ four claims).
With respect to Plaintiffs’ request for attorney’s fees, granted, a time sheet (indicating the
hours expended and nature of the work don) has not been provided. However, the Court finds
that the number of hours worked (i.e., 15.5) is reasonable. With regard to a reasonable hourly
rate, the Court finds that the requested hourly rate of $450 is considerably higher than what is
2

Fed. R. Civ. P. 55(b).

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See Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989) (noting
that “it [is] not necessary for the District Court to hold a hearing, as long as it ensured that there
was a basis for the damages specified in the default judgment”); Tamarin v. Adam Caterers, Inc.,
13 F.3d 51, 54 (2d Cir. 1993) (noting that it is “not necessary for the district court to hold a
hearing to fix damages after a default judgment had been entered where the court had ‘relied
upon detailed affidavits and documentary evidence supplemented by the District Judge's
personal knowledge of the record gained during four years involvement with the litigation . . .’”);
Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991) (concluding that, where
district judge was “inundated with affidavits, evidence, and oral presentations,” a full evidentiary
hearing was not necessary).
4

(Dkt. No. 13, Attach. 2.)

5

(Dkt. No. 13, Attach. 3.)
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usually expected in the Northern District of New York. For recent cases in this District, hourly
rates have ranged from $250 to $345 for partners of a firm. Berkshire Bank v. Tedeschi, 11-CV0767 2015 WL 235848, at *3 (N.D.N.Y. Jan. 16, 2015) (Kahn, J.). However, the courts within
this District “consistently deem $300 to be a reasonable hourly rate for an experienced partner.”
Seidenfuss v. Diversified Adjustment Servs., Inc., 15-CV-1210 2016 WL 1047383, at *2
(N.D.N.Y. Mar. 15, 2016) (Hurd, J.). Applying this rate in this case, the Court grants $4,650 in
attorney’s fees to Plaintiffs.
Therefore, the Court concludes that Plaintiffs have met their burden of establishing a
valid basis for damages and attorney’s fees, and that default judgment against Defendants,
awarding Plaintiffs $28,650 in damages and attorney’s fees, is appropriate plus statutory interest
pursuant to 28 U.S.C. § 1961.6
Finally, with respect to Plaintiffs’ request for a permanent injunction, the Court finds that
BMI has shown that it is entitled to injunctive relief under 17 U.S.C. § 502, and that it has met
the prerequisites for the issuance of an injunction for the same reasons as found in Broad. Music,
Inc. v. Bayside Boys, Inc., 12-CV-3717, 2013 WL 5352599, at *7 (E.D.N.Y. Sept. 23, 2013).
ACCORDINGLY, it is
ORDERED that Plaintiffs’ motion for entry of default judgment against Defendants
(Dkt. No. 13) is GRANTED; and it is further

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See Eng’rs Joint Welfare, Pension, Supplemental Unemployment Benefit and
Training Funds, 2009 WL 4730700, at *3-4 (finding, in an unopposed motion for default
judgment based on an ERISA claim, that plaintiffs were entitled to unpaid contributions, interest
on unpaid contributions, liquidated damages, and audit fees in amounts that plaintiffs claimed
they were entitled to pursuant to the parties’ agreement and/or 29 U.S.C. § 1132[g][2][C]).
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ORDERED that the Clerk of the Court is directed to enter a default judgment in
Plaintiffs’ favor against Defendants in the amount of TWENTY-EIGHT THOUSAND SIX
HUNDRED FIFTY DOLLARS ($28,650) plus statutory interest pursuant to 28 U.S.C. § 1961;
and it is further
ORDERED that Defendants Rider Rock’s Holding, LLC, d/b/a Rocks and its agents,
servants, employees, and all persons acting under their permission and authority, and Lance J.
Rider, individually, is PERMANENTLY ENJOINED AND RESTRAINED from infringing,
in any manner, the copyrighted musical compositions licensed by BMI, pursuant to 17 U.S.C. §
502.
Date: July 14, 2017
Syracuse, New York
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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