Broadcast Music, Inc. et al v. Metro Lounge & Cafe, LLC et al

Filing 42

MEMORANDUM-DECISION AND ORDER denying as moot Pltf's 34 Motion ; granting Pltf's 37 Motion for Sanctions; accepting 40 Report and Recommendations. Pltfs are awarded an entry of default and determination of liability against Metro Lo unge and Cafe LLC and Sammer Essi; that pltfs shall apply by affidavit w/in 30 days for a calculation of damages by this Court; that Metro Lounge and Cafe LLC and Sammer Essi are entitled to notice of application; and an award of atty's fees is not warranted. Signed by Judge Norman A. Mordue on 9/18/12. [Served by mail.] (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
gggggggggggggggggggggggggggggggggggggggggggggggggggggggg

BROADCAST MUSIC, INC.; MJ PUBLISHING
TRUST,
Plaintiffs,
-v-

5:10-CV-1149 (NAM/ABT)

N

METRO LOUNGE & CAFÉ LLC, d/b/a/ METRO
SUSHI BAR & LOUNGE, SAMMER ESSI,
individually, and GABRIEL J. SANDE, individually,
Defendants.
gggggggggggggggggggggggggggggggggggggggggggggggggggggggg

A

APPEARANCES:
Hodgson Russ LLP
Paul I. Perlman, Esq., of counsel
The Guaranty Building
140 Pearl Street, Suite 100
Buffalo, New York 14202-4040
Attorney for Plaintiffs
Sammer Essi
Defendant, pro se

Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
In their complaint, plaintiffs allege that defendants infringed plaintiffs’ copyrights in
M

connection with public performances of music at the Metro Lounge and Café (“Metro Lounge”).
United States Magistrate Judge Andrew T. Baxter has issued an Order and Report and
Recommendation (Dkt. No. 40), recommending that this Court grant plaintiffs’ motion (Dkt. No.
37) for discovery sanctions in the form of a default judgment on liability against defendant
Sammer Essi (“Essi”). Magistrate Judge Baxter further recommends that default judgment on
liability be entered against Metro Lounge based on its failure to appear through counsel. He thus
recommends denying as moot plaintiffs’ motion (Dkt. No. 34) for an order allowing plaintiffs to

seek a Clerk’s Entry of Default against Metro Lounge if it did not appear by counsel within 14
days. Magistrate Judge Baxter recommends denial of attorney’s fees. Further, he recommends
that the Court hold an inquest, by affidavit or otherwise, to determine the amount of damages.
Essi has submitted an objection (Dkt. No. 41) to the Order and Report and
Recommendation on his own behalf and purportedly on behalf of Metro Lounge. Essi makes
various allegations regarding his business problems. He indicates that he wants to settle the
N

matter. He also states, with respect to his answers to interrogatories: “I answered what I could, I
could not compile any paper data[.]”
In light of Essi’s objections, the Court conducts de novo review regarding the issue of an
entry of default and determination of liability against Essi, bearing in mind his pro se status. The
Order and Report and Recommendation addresses in detail Essi’s failure to respond adequately to

A

plaintiffs’ interrogatories and document requests. The record reflects Magistrate Judge Baxter’s
extensive efforts to inform Essi of his disclosure obligations, to provide notice of the
consequences of his failure, and to extend opportunities for him to comply. On de novo review,
the Court agrees with Magistrate Judge Baxter’s conclusion that “defendant [Essi] has not acted
in good faith with respect to plaintiffs’ attempts at discovery, nor has he acted in good faith in
complying with the court’s orders.” The Court adopts the Order and Report and

M

Recommendation regarding Essi.
As for Metro Lounge, an artificial entity must appear by counsel; accordingly Essi’s
objection to the Report and Recommendation on behalf of Metro Lounge is a nullity, and Metro
Lounge is deemed to have failed to object. The Court has reviewed the record and finds that
Magistrate Judge Baxter gave Essi and Metro Lounge appropriate warning, notice, and

-2-

opportunity to avoid default on the part of Metro Lounge. The Court finds no error in the Report
and Recommendation and adopts it with respect to Metro Lounge.
Accordingly, despite their initial appearance, Metro Lounge and Essi are in default for
“failure to otherwise defend.” Fed.R.Civ.P. 55(a); see generally City of New York v. Mickalis
Pawn Shop, LLC, 645 F.3d 114, 130 (2d Cir. 2011). The well-pleaded allegations of the
complaint support a determination that they are liable as alleged. Therefore, plaintiffs are entitled
N

to an entry of default and determination of liability against Metro Lounge and Essi. Default
judgment cannot, however, be granted until the Court has determined the amount of damages.
The Court prefers to do this by affidavit if possible. Plaintiffs are directed to apply by affidavit
within 30 days for a calculation of damages by this Court. Because Metro Lounge and Essi
initially appeared in this action, they are entitled to notice of plaintiffs’ application. In the event

A

the Court determines that a hearing is required, the parties will be notified. Under all the
circumstances, the Court agrees that attorney’s fees are not warranted.
It is therefore
ORDERED that the Order and Report and Recommendation (Dkt. No. 40) is accepted;
and it is further
ORDERED that plaintiffs’ motion (Dkt. No. 34) is denied as moot; and it is further

M

ORDERED that plaintiffs’ motion (Dkt. No. 37) is granted; and it is further
ORDERED that plaintiffs are awarded an entry of default and determination of liability
against Metro Lounge and Café LLC and Sammer Essi; that plaintiffs shall apply by affidavit
within 30 days for a calculation of damages by this Court; that Metro Lounge and Café LLC and
Sammer Essi are entitled to notice of the application; and that an award of attorney’s fees is not

-3-

warranted; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this MemorandumDecision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
September 18, 2012
Syracuse, New York

N
A
M

-4-