Case5:11-cv-02199-EJD Document24 Filed12/14/11 Page1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`BROADCAST MUSIC, INC., ET AL,
`CASE NO. 5:11-02199-EJD
`ORDER GRANTING PLAINTIFFS’
`MOTION FOR DEFAULT JUDGMENT
`
`Plaintiffs,
`
` v.
` MAURICE J. PADEN, ET AL.,
`
`[Re: Docket Item No. 17]
`
`Defendants.
` /
`Presently before the Court is Plaintiffs Broadcast Music, Inc., Emi Virgin Songs, Inc. MJ
`Twelve Music, Paul Simon Music, Emi Blackwood Music, Inc., and Jackaboy Songs’s (collectively,
`“Plaintiffs”) Motion for Default Judgment against Defendants Maurice Payden (also known as
`Maury Paden) and Christine Paden, both individually and doing business as Masse’s Billiards Sports
`Bar and Grill (collectively, “Defendants”). Having reviewed Plaintiffs’ pleadings and the applicable
`legal authorities, the Motion is granted. 1
`I. FACTUAL AND PROCEDURAL BACKGROUND
`Broadcast Music, Inc. (“BMI”) is a New York corporation with its principal place of
`business in New York, New York. Compl. at ¶ 4. BMI has been granted the right to license the
`public performance rights in approximately 6.5 million copyrighted musical compositions (the “BMI
`repertoire”), including those allegedly infringed. Id. BMI then grants music users, such as owners
`
`1
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` This disposition is not intended for publication in the official reports.
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`ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
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`and operators of concert halls and restaurants, the right to publicly perform any of the works in
`BMI’s repertoire through “blanket license agreements.” Decl. of Kerri Howland-Kruse at ¶ 2.
`Operating as a non-profit making music performing rights organization, BMI distributes all of its
`income, after deducting operating expenses and reasonable reserves, to its affiliated songwriters and
`music publishers. Id. at ¶ 3.
`BMI acquired the public performance rights described above from each of the other Plaintiffs
`in this action. Id. at ¶ 2. The other Plaintiffs own copyrights in the musical compositions that are the
`subject of the instant action, but also granted BMI the right to maintain actions for infringement of
`the public performance rights in their musical compositions and to seek damages for such
`infringement. Id. at ¶ 4-5.
`Defendants operate, maintain and control an establishment in this district known as Masse’s
`Billiards Sports Bar and Grill. Compl. at ¶ 11. Defendants have the right and ability to supervise the
`activities of the employees and have direct financial interest in the establishment. Id. at ¶ 14-16.
`From July 1995 through June 2008, Defendants held a BMI license for the public
`performance of music in the BMI repertoire at Masse’s Billiards Sports Bar and Grill. Decl. Of Paul
`Knipler at ¶ 3. In May 2004, BMI discovered that Defendants were charging an admission fee and
`allowing dancing in the establishment, both factors not covered by their current license. Id. at ¶ 4.
`After numerous attempts to adjust the license to include these two new factors, Christine Paden sent
`a letter to BMI stating that Defendants would no longer pay licensing fees or use BMI-affiliated
`music. Id. at ¶ 5.
`BMI subsequently sent numerous letters to Defendants reminding them of their obligations
`and instructing them to cease the public performance of BMI-licensed music. Id. at ¶ 6-10. Despite
`BMI’s efforts, Defendants failed to enter into a new license agreement with BMI and continued to
`offer unauthorized public performance of BMI-affiliated music. Id. at ¶ 14. At issue in the instant
`action is the public performance on November 16, 2010 of three songs: “Everlong,” “You Can Call
`Me Al,” and “I Wanna Do Bad Things With You a/k/a Bad Things.” See Compl. at 7.
`The Complaint contains three claims of copyright infringement. Id. at 7-8. Defendants were
`served with a copy of the Summons, Complaint and related documents in compliance with Federal
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`Rule of Civil Procedure 4(c) and (e). See Docket Items Nos. 8-10. Maurice Paden and Masse’s
`Billiards Sports Bar and Grill were served on May 11, 2011, and Christine Paden was served on
`May 12, 2011. Id. Despite the extension of time Plaintiffs granted Defendants to file responsive
`pleadings, no Defendant ever filed or served a responsive pleading. Decl. of Karen S. Frank at ¶ 6;
`Exhibits 4-5.
`Pursuant to Plaintiffs’ request, the clerk entered default against Defendants on August 5,
`2011. See Docket No. 16. This motion followed on August 18, 2011. See Docket No. 17. A hearing
`on the motion was held on October 7, 2011. Defendants failed to appear. See Docket No. 22.
`II. DISCUSSION
`
`A.
`
`Legal Standard
`Pursuant to Federal Rule of Civil Procedure 55(b), the court may enter default judgment
`against a defendant who has failed to plead or otherwise defend an action. “The district court’s
`decision whether to enter default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d
`1089, 1092 (9th Cir. 1980). The Ninth Circuit has provided seven factors for consideration by the
`district court in exercising its discretion to enter default judgment: (1) the possibility of prejudice to
`the plaintiff; (2) the merits of plaintiff's substantive claim; (3) the sufficiency of the complaint; (4)
`the sum of money at stake in the action; (5) the possibility of dispute concerning material facts; (6)
`whether default was due to excusable neglect and; (7) the strong policy underlying the Federal Rules
`of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th
`Cir. 1986). When assessing these factors, all factual allegations in the complaint are taken as true,
`except those with regard to damages. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th
`Cir. 1987).
`B.
`Jurisdiction
`Courts have an affirmative duty to examine their own jurisdiction—both subject matter
`jurisdiction and personal jurisdiction—when entry of judgment is sought against a party in default.
`In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999). The court does so below.
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`Subject Matter Jurisdiction
`1.
` District courts have original jurisdiction to hear any civil action arising under any Act of
`Congress relating to patents, plant variety protection, copyrights and trademarks. 28 U.S.C.
`§ 1338(a). Here, the action arises under the United States Copyright Act of Congress. Compl. ¶ 6.
`This court may therefore exercise subject matter jurisdiction over this action.
`2.
`Personal Jurisdiction
`As the party seeking to invoke the court ’s jurisdiction, Plaintiffs must bear the burden of
`establishing personal jurisdiction over Defendants. See Scott v. Breeland, 792 F.2d 925, 927 (9th
`Cir. 1986). Plaintiffs contend that Masse’s Billiards Sports Bar and Grill is located at 2721 N. Main
`Street, Walnut Creek, California, an address within this District. Compl. ¶ 11. Furthermore,
`Plaintiffs allege that Defendants operate, maintain, control and do business as Masse’s Billiards
`Sports Bar and Grill. This court therefore has personal jurisdiction over Defendants.
`3.
`Service of Process
`The court must assess whether the Defendants were properly served with notice of this
`action. Plaintiff served the Summons and Complaint on Defendants by delivering the documents to
`Maurice Paden and Christine Paden at the Masse’s Sports Bar and Grill. See Docket Item Nos. 8-
`10. The court finds Plaintiffs effected service of process in conformance with subsections (c) and (e)
`of Federal Rule of Civil Procedure 4.
`C.
`The Eitel Factors
`Having found the existence of jurisdiction and proper notice, the court now turns to the Eitel
`factors.
`
`Prejudice to Plaintiffs
`1.
`Under the first factor, the court must examine whether Plaintiffs will be prejudiced should
`the court deny the request for default judgment. Having done so, the court agrees with Plaintiffs that
`denial of the motion would allow Defendants’ alleged infringing conduct to continue undeterred and
`leave Plaintiff without any recourse or way to recover lost profits. Furthermore denial of the
`injunctive relief requested will leave Plaintiffs with no means of preventing Defendants from
`infringing Plaintiffs’ rights in the future, especially since these particular individuals have serially
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`violated Plaintiffs’ copyrights since they canceled the original licensing agreement on August 9,
`2007. Frank Decl. at ¶ 5. Because failure to grant the Motion would cause substantial harm to
`Plaintiffs, this factor weighs in favor of entering default judgment.
`2.
`Sufficiency of Plaintiffs’ Complaint, Likelihood of Success, and
`Possibility of Factual Dispute
`For the second, third and fifth factors, the court must determine whether Plaintiffs’
`Complaint contains sufficient facts to establish and succeed on its claim.
`The complaint contains three claims for copyright infringement in violation of 17 USC §
`501. Section 501(a) states that "[a]nyone who violated any of the exclusive rights of the copyright
`owner as provided by sections 106 through 122 . . . is an infringer of the copyright." In order to state
`a claim for copyright infringement, plaintiff must show (1) that it owns a valid copyright in the
`allegedly infringed material, and (2) that defendants violated an exclusive right granted to the
`copyright owner. Id. “Copyright claims need not be pled with particularity. . . complaints simply
`alleging present ownership by plaintiff, registration in compliance with the applicable statute and
`infringement by defendant have been held sufficient under the rules.” Perfect 10, Inc. v. Cybernet
`Ventures, Inc. et al., 167 F. Supp. 2d 1114, 1120 (2001).
`Here, Plaintiffs have met their burden to sufficiently plead each of these elements. Taking
`each in turn, Plaintiffs contend that they own valid copyrights in the allegedly infringed material.
`Furthermore, Plaintiff asserts that Defendants publicly performed the copyrighted songs without
`authorization. Plaintiff has pled facts to demonstrate that Defendants violated their exclusive rights
`as the copyright owner of “Everlong,” “You Can Call Me Al,” and “I Wanna Do Bad Things With
`You a/k/a Bad Things.” See Docket Item No. 1. Taking the factual allegations of the Complaint as
`true, Plaintiffs set forth sufficient and specific allegations to support their claims for copyright
`infringement claims against Defendants.
`Additionally, according to the Knipler Declaration submitted in support of this motion,
`Jennica Janssen (“Janssen”) was authorized to visit the establishment and make audio recordings and
`written reports of the music being publicly performed. Knipler Decl. ¶ 15. According to Janssen’s
`Certified Infringement Report and the BMI Music Researcher Joannah Carr’s review of Janssen’s
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`audio recordings, the three compositions identified in the Complaint were performed in Masse’s
`Billiards Sports Bar and Grill on November 16, 2010. Id.; Exhibit E. The second, third and fifth
`factors, therefore, weigh in favor of entering default judgment against Defendants.
`3.
`Sum of Money at Stake
`The fourth Eitel factor requires the court to examine the amount of money at stake.
`According to the motion, Plaintiffs are seeking an injunction, statutory damages, the costs of the
`action, and reasonable attorneys’ fees. Plaintiffs request a statutory damages award of $21,000,
`which is approximately three times the amount Plaintiffs would have received in licensing fees from
`Defendants had their establishment been properly licensed. Since the maximum amount is $30,000
`per infringement, the requested $7,000 per infringement is reasonable. In addition, considering the
`experience of counsel, the nature of the case, and the services provided, $11,399.00 is a reasonable
`amount for attorneys’ fees and costs. Thus, the fourth factor also weighs in favor of Plaintiffs’
`requested default judgment.
`4.
`Possibility of Excusable Neglect
` The court must examine the possibility that Defendants’ default is due to excusable neglect
`under the sixth Eitel factor. Here, Defendants were each served with notice of this proceeding and,
`as already noted, did not respond or otherwise appear. There is no evidence, or even suggestion, that
`their failure to participate is due to anything other than informed inaction. As such, this factor
`favors entry of default judgment.
`5.
`Policy Favoring Decisions on the Merits
` The seventh and final Eitel factor requires observation of the policy favoring the
`determination of cases on their merits rather than through default judgment. Eitel, 782 F.2d at 1472.
`The court recognizes that default judgments are generally disfavored. See Pena v. Seguros La
`Comercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985). The Federal Rules of Civil Procedure, however,
`provide for entry of default in situations such as this: where a decision on the merits is either
`impracticable or impossible. See Philip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494,
`501 (C.D. Cal. 2003). Defendants’ complete failure to respond in any way renders a decision on the
`merits both impracticable and impossible. Thus, this factor weighs in favor of default judgment.
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`In sum, all of the factors designated for review under Eitel weigh in favor of entry of default
`judgment against Defendants.
`D.
`Remedies
`Having determined that default judgment may be entered, the court must now determine the
`appropriate remedy. See 3A Entm’t Ltd. v. Constant Entm’t, Inc., No. C 08-1274 JW, 2009 WL
`248261, at 9-10 (N.D. Cal. Jan 30, 2009).
`In general, the owner of a copyright is entitled to recover the actual damages suffered as a
`result of a copyright infringement in addition to any profits earned by the copyright infringer. 17
`U.S.C. § 504(a). In the alternative, the copyright owner may elect, at any time before final judgment
`is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all
`infringements involved in the action. Id. at 504(c)(1). Within the limits of $750 and $30,000 per
`infringement, the amount of any statutory damages award is within the discretion of the court. Id. at
`§ 504(c); Harris v. Emus Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984).
`Plaintiff here requests a reasonable award of $21,000, constituting an award of $7,000 for
`each of the three infringements. This figure is approximately three times the amount Plaintiffs
`would have received in licensing fees from Defendants had their establishments properly been
`licensed. Knipler Decl. at ¶ 15. Courts have consistently held that a statutory damages award three
`times the amount that the plaintiff would have received in licensing fees is appropriate under §
`504(c). See Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1229-30 (7th Cir. 1991); Dream
`Dealers Music v. Parker, 924 F. Supp. 1146, 1153 (S.D. Ga. 1994) (awarding three times what
`defendant would have paid ASCAP to be licensed). In light of Plaintiffs’ repeated notices to
`Defendants, Plaintiffs’ request is a reasonable and appropriate statutory damages award.
`In addition, pursuant to 17 U.S.C. § 505, Plaintiffs request an award of costs and reasonable
`attorneys’ fees. As articulated above, in the light of the experience of counsel, the nature of the case,
`and the services provided, $11,399.00 is a reasonable amount to be awarded by the court.
`Finally, in accordance with 17 U.S.C. § 502, Plaintiffs request that the court enjoin
`Defendants, their agents, servants, employees, and all other persons acting under their authority from
`infringing in any manner on copyrighted musical compositions licensed by BMI. “The basis for
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`injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal
`remedies.” Lucasfilm Ltd. v. Media Market Gp., Ltd., 182 F. Supp. 2d 897, 899 (N.D. Cal. 2002)
`(internal quotations omitted). Here, the court finds that failure to issue a permanent injunction will
`expose Plaintiffs to continuing irreparable injury. Without such an injunction, Plaintiffs will need to
`expend further resources to discover and eliminate Defendants’ unauthorized public performance of
`BMI licensed music. Defendants have shown a disregard for the requirement of a licensing
`agreement by continuing to publicly perform BMI music without a license. Moreover, other legal
`remedies, such as monetary damages, are inadequate to eliminate the problem described above.
`Thus, Plaintiffs have shown they are entitled to injunctive relief. See, e.g., Broadcast Music, Inc. V.
`Colonial Foods, Inc., No. 92-4253 DLJ, 1993 WL 87808, at *2 (N.D. Cal. Mar. 17, 1993) (granting
`similar injunctive relief when Defendants continued to infringe the copyrights of certain musical
`compositions after repeated notice and requests that they stop and defendants have failed to provided
`any evidence proving non-infringement).
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`III. ORDER
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`Based on the foregoing:
`1. Plaintiffs’ Motion for Default Judgment is GRANTED against Defendants Maurice J.
`Payden (also known as Maury Paden), Christine G. Paden, both individually and doing business as
`Masse’s Billiards Sports Bar and Grill;
`2. Defendants, their agents, servants, employees and all persons acting under their permission
`and authority, are enjoined and restrained from infringing, in any manner, the copyrighted musical
`compositions licensed by BMI, pursuant to 17 U.S.C. Section 502.
`3. Plaintiffs shall recover from Defendants Maurice J. Paden a/k/a Maury Paden and
`Christine G. Paden, both individually and d/b/a Masse’s Billiards Sports Bar and Grill, jointly and
`severally, statutory damages in the amount of $7,000.00 for each of the three musical compositions,
`for a total of $21,000.00, pursuant to 17 U.S.C. Section 504(c)(1).
`4. Plaintiffs shall recover from Defendants Maurice J. Paden a/k/a Maury Paden and
`Christine G. Paden, both individually and d/b/a Masse’s Billiards Sports Bar and Grill, jointly and
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`severally, full costs in this action, including reasonable attorney's fees in the amount of $11,399
`pursuant to 17 U.S.C. Section 505.
`5. Plaintiffs shall recover from Defendants Maurice J. Paden a/k/a Maury Paden and
`Christine G. Paden, both individually and d/b/a Masse’s Billiards Sports Bar and Grill, jointly and
`severally, interest on the full amount of this judgment, from the date of this judgment, pursuant to 28
`U.S.C. Section 1961.
`IT IS SO ORDERED.
`Dated: December 14, 2011
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`EDWARD J. DAVILA
`United States District Judge
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