GLENN T. SUDDABY, Chief District Judge.
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.
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.)
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.)
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. 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.)
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.
"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-CV-7046, 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 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).
After carefully considering Plaintiffs' unopposed motion, the Court is satisfied that, under the circumstances, Plaintiffs have met their modest threshold burden of establishing entitlement to default judgment against Defendants on the issue of liability.
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).
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,
For example, in support of its damages request, Plaintiffs have provided, inter alia, the Declarations of Brian Mullaney
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 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-CV-0767 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.
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).
