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Broadcast Music, Inc. v. Kujo Long, LLC

United States District Court, M.D. Pennsylvania

August 14, 2014

KUJO LONG, LLC, Defendants


YVETTE KANE, District Judge.

Before the Court is Plaintiffs' motion for default judgment. (Doc. No. 11.) As Defendants have yet to appear or defend in this action, no opposition to the motion has been filed. For the reasons that follow, the Court will grant the motion and enter default judgment in favor of Plaintiffs.


On March 3, 2014, Plaintiffs, including Broadcast Music, Inc., [1] ("BMI") filed the above-captioned action against Defendants Kujo Long, LLC, Stephen G. Kujovsky, and Lonnie M. Long. (Doc. No. 1.) The complaint alleges that Defendant Kujo Long, LLC operates, maintains and controls Niko's, an establishment located in Lebanon, Pennsylvania, which regularly features performances of live and recorded music. (Id. ¶¶ 20-21.) Defendants Kujovsky and Long are, respectively, the President and Secretary of Kujo Long, and the complaint alleges that both individuals are responsible for the operation and management of Kujo Long. (Id. ¶¶ 23-26.) The complaint brings twelve claims of willful copyright infringement arising from unauthorized public performances at Niko's of musical compositions owned and/or licensed by the Plaintiffs. (Id. ¶¶ 28-34.)

The record indicates that, although Defendants were properly served with the summons and complaint, Defendants have not appeared, answered, moved, or otherwise responded to Plaintiffs' complaint. Subsequently, on May 5, 2014, Plaintiffs requested the Clerk of Court enter default against Defendants, which the Court entered that same day. (Doc. Nos. 9-10.) On June 19, 2014, Plaintiffs filed a motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b). (Doc. No. 11.) Plaintiffs seek an injunction enjoining and restraining Defendants from infringing on their copyrighted musical compositions. (Id.) Plaintiffs also seek statutory damages of $30, 000, consisting of an award of $2, 500 for each of the twelve acts of infringement, in addition to costs and attorneys fees. (Id.)


A. Default judgment

Rule 55(b)(2) of the Federal Rules of Civil Procedure provides for entry of default judgment against a defendant who has not appeared and who is neither a minor nor an incompetent person. Fed.R.Civ.P. 55(b)(2). Entry of default does not entitle a claimant to default judgment as a matter of right. 10 James Wm. Moore, Moore's Federal Practice § 55.31 (Matthew Bender ed. 2010). Even when a party has defaulted and all of the procedural requirements for a default judgment are satisfied, the decision to either render default judgment or refuse to render default judgment rests in the discretion of the district court. Emcasco Ins. Co. v. Sambrick , 834 F.2d 71, 74 (3d Cir. 1987). In undertaking this evaluation, the Court must consider: "(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)). But when a defendant has failed to appear or respond in any fashion to the complaint, this analysis is necessarily one-sided; entry of default judgment is typically appropriate in such circumstances at least until the defendant comes forward with a motion to set aside the default judgment pursuant to Rule 55(c). As the United States Court of Appeals for the Third Circuit has explained:

In most instances where a party's right to prosecute or defend would be terminated as a sanction, the moving party has the burden of creating a record showing the appropriateness of this ultimate sanction and the district court has the responsibility of making a determination on that issue in light of considerations like those articulated in Poulis. When a defendant fails to appear and perhaps under other circumstances covered by Rule 55, the district court or its clerk is authorized to enter a default judgment based solely on the fact that the default has occurred. Even in those situations, however, consideration of Poulis type factors is required if a motion to lift the default is filed under Rule 55(c) or Rule 60(b) and a record is supplied that will permit such consideration.

Anchorage Assocs. v. V.I. Bd. of Tax Review , 922 F.2d 168, 177 n.9 (3d Cir. 1990).

The Court finds that the factors weigh in favor of granting default judgment. First, Plaintiffs will be prejudiced both by their claimed lost revenues, and by their current inability to proceed with their action due to Defendants' failure to defend. See Frank Music Corp. v. Emerson's Pub, Inc., No. 08-0532, 2009 WL 744964, at *1 (M.D. Pa. Mar. 18, 2009) (finding prejudice to plaintiff in copyright infringement case because "[i]f default is denied, plaintiffs face the prejudice of being unable to proceed with this action and the potential continued infringement of their copyrighted works"). Second, Defendants have not answered the complaint and, accordingly, have not asserted any meritorious defense to its allegations or to the subsequent motion for default judgment. Lastly, Defendants were all properly served, yet did not respond to the complaint or appear to oppose the subsequent motion for default judgment. Accordingly, Defendants are personally culpable for their failure to appear and the record does not display any mitigating circumstances excusing such failure. In light of these factors, the Court finds that default judgment is appropriate under the circumstances.

Because default judgment is appropriate under the factors provided by the Third Circuit, "the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Comdyne I, Inc. v. Corbin , 908 F.2d 1142, 1149 (3d Cir. 1990). The allegations in the complaint, taken as true, are sufficient to make out a claim of copyright infringement. A claim of copyright infringement requires a plaintiff to establish by a preponderance of the evidence: "(1) ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiff's work."[2] Spring Mount , 555 F.Supp.2d at 541 (quoting Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc. , 307 F.3d 197, 206 (3d Cir. 2002)). "Copying refers to the act of infringing any of the exclusive rights that accrue to the owner of a valid copyright, as set forth at 17 U.S.C. § 106, including the rights to distribute and reproduce copyrighted material." Id . (citing Kay Berry, Inc. v. Taylor Gifts, Inc. , 421 F.3d 199, 207 (3d Cir. 2005)). The complaint alleges that Plaintiffs own the copyrights to the infringed musical compositions, and that Plaintiff BMI has been granted the right to license those public performance rights, including the rights to all copyrights infringed by Defendants. (Doc. No. 1.) The complaint also alleges that Defendants are responsible for operations at Niko's, where public performances of those copyrighted compositions took place. (Id. ¶¶ 20-34.) The complaint also incorporates a "Schedule" that lists, among other pertinent facts, the names of the copyrighted compositions, the date on which the material was copyrighted, and the date Defendants infringed the copyright at their establishment. (Doc. No. 1 at 9-13.) Accordingly, the facts set forth in the complaint state a valid claim of copyright infringement against the Defendants entitling Plaintiffs to default judgment. See generally Broad. Music, Inc. v. Shane's Flight Deck, Ltd., No. 09-2151, 2010 WL 4916208 (M.D. Pa. Nov. 24, 2010), Frank Music Corp, 2009 WL 744964. See also Broad. Music, Inc. v. It's Amore Corp., No. 08-570, 2009 WL 1886038, at *5 (M.D. Pa. June 30, 2009) (granting summary judgment to BMI in factually similar case where "[defendants] sponsored the infringing performances, since they were the proprietors of the restaurant where those performances took place. As such, they are liable for the infringement."). Because the Court has determined that Plaintiffs are entitled to default judgment on their copyright claims, the court will now proceed to the issue of Plaintiffs' requested relief.

B. Relief

1. Injunctive ...

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