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Frank Music Corp. v. Emerson's Pub

March 18, 2009

FRANK MUSIC CORP., ET AL., PLAINTIFFS
v.
EMERSON'S PUB, INC. AND DELVIN L. BRUCE, DEFENDANTS



The opinion of the court was delivered by: Judge John E. Jones III

MEMORANDUM

This matter is before the Court on the plaintiffs' Motion for Judgment by Default (Doc. 12). For the reasons set forth below, the motion will be granted.

I. BACKGROUND

On March 24, 2008, the plaintiffs, owners of the copyrights in certain musical compositions, filed the complaint in this action against defendants Emerson's Pub, Inc. and its owner Delvin L. Bruce, asserting claims of copyright infringement based on the public performance of their copyrighted works at the defendants' establishment without a license and despite repeated letters and contacts from plaintiffs' representatives informing the defendants of their potential liability. (Doc. 1.) The plaintiffs seek an injunction permanently restraining defendants from causing or permitting the copyrighted compositions from being performed in their premises, statutory damages under 17 U.S.C. § 504(c)(1), and costs and attorney's fees.

On April 28, 2008, the plaintiffs returned executed summonses showing that the complaint has been personally served on the defendants on April 5, 2008. (Docs. 6, 7.)

The defendants having not answered or otherwise responded to the complaint, on May 21, 2008, pursuant to the plaintiffs' request (Doc. 8), the Clerk of the Court enter default against the defendants (Doc. 9.)

On February 11, 2009, plaintiffs filed a motion for default judgment (Doc. 12) and a brief in support thereof (Doc. 13). The defendants have not responded to the motion, and in the nearly one year that this action has been pending have never appeared.

II. DISCUSSION

A. Entry of Default Judgment

Federal Rule of Civil Procedure 55(b)(2) grants courts the authority to enter default judgment against a party who has failed to pled or otherwise defend. "Three factors control whether a default judgment should be granted: (1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant's delay is due to culpable conduct."

Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000) (citing United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195 (3d Cir. 1984)). In this case, entry of default judgment is appropriate. If default is denied, plaintiffs face the prejudice of being unable to proceed with this action and the potential continued infringement of their copyrighted works. The defendants have asserted no defense to the plaintiffs' claims, which are well supported by their motion. (See Aff. of Douglas Jones and Aff. of Vincent V. Carissimi, Doc. 13-2.) Finally, the delay in this case is attributable solely to the defendants' willful refusal to appear or defend despite knowledge of this action. The Court will therefore enter judgment in favor of the plaintiffs.

B. Injunctive Relief

The Copyright Act provides that a court may grant "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 a court enters a default judgment, 'the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" DIRECTV, Inc. v. Pepe, 431 F.3d 162, 165 n.6 (3d Cir. 2005) (quoting Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990)). Therefore, the plaintiffs' allegation of infringement is taken as true for the purpose of the instant motion only and the court ...


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