Emi April Music, Inc. v. 1064 Old River Road, Inc.

File Name: 07a0067n.06
Filed: January 26, 2007
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 06-3484
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EMI APRIL MUSIC, INC.,
Plaintiff-Appellee,
J. ALBERT & SON (USA) INC.,
Plaintiff-Appellee,
FAMOUS MUSIC CORPORATION AND
BYEFALL PRODUCTIONS, INC.,
Plaintiff-Appellee,
v.
1064 OLD RIVER ROAD, INC.,
Defendant-Appellant.
CURTIS KNOWLES,
Defendant-Appellant.
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
/
Before: MARTIN, BATCHELDER, and McKEAGUE, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. In this copyright infringement case, the district
court granted default judgment against Defendants 1064 Old River Road, Inc., and its President,
Curtis Knowles. Defendants appeal the district court’s denial of their motion for relief from
judgment, brought under Fed. R. Civ. P. 60(b)(1).

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I.
Defendant 1064 Old River Road operates a nightclub known as the Cleveland Beach Club.
Knowles is one of the corporation’s three shareholders as well its president. Plaintiffs are all
members of the American Society of Composers, Authors and Publishers, an unincorporated
membership association that offers licenses to music users permitting the use of its members’
copyrighted musical compositions. On August 5, 2005, Plaintiffs filed their complaint against
Defendants, alleging three counts of copyright infringement based on Defendants’ unauthorized use
of Plaintiffs’ copyrighted music.
The complaint was properly served on Defendants on September 1, 2005, but Defendants
neglected to file their answer or otherwise respond to the lawsuit. On October 13, 2005, Plaintiffs
moved both for an entry of default under Fed. R. Civ. P. 55(a) and for default judgment under Fed.
R. Civ. P. 55(b)(2). The clerk entered the default, and the district court subsequently granted the
motion for default judgment on November 30, 2005. On January 2, 2006, Defendants filed a motion
seeking relief from the judgment under Rule 60(b)(1), claiming that their failure to respond to the
complaint was due to excusable neglect. Specifically, Knowles’s brother had suffered from a stroke
in August of 2005 that left him paralyzed, and he passed away on September 21. Knowles filed an
affidavit in support of the motion, stating that although he had been properly served with the
complaint twenty days before his brother’s death, he was unavailable due to the duties of caring for
his brother after the stroke. After his brother’s death, Knowles continued to be consumed with his
own grief, the duties of attending to his mother, and the arrangements for his brother’s funeral.
Knowles also averred that while his assistants handle the day-to-day business of the club, he alone

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EMI April Music, Inc., et al. v. 1064 Old River Road, Inc., et al.
Page 3
handles the more significant matters, including legal affairs.
The district court rejected the Rule 60(b) motion, reasoning that Defendants had been on
notice of the lawsuit for four months, and that their failure to respond could not be attributed to
mistake, inadvertence, surprise, or excusable neglect. In a subsequent order, the district court
permanently enjoined Defendants from performing any of the musical compositions referenced in
the complaint, and awarded Plaintiffs statutory damages of $2500 for each of the three counts of
infringement, as well as $2745 in fees and costs. Defendants bring the present appeal from the
denial of their Rule 60(b) motion.
II.
When a party seeks relief from default judgment under Rule 60(b)(1), we review the district
court’s decision for an abuse of discretion. Burrell v. Henderson, 434 F.3d 826, 831 (6th Cir. 2006).
We have described abuse of discretion as “a definite and firm conviction that the trial court
committed a clear error of judgment.” Id. “A clear example of an abuse of discretion occurs where
the district court fails to consider relevant ‘facts upon which the exercise of its discretionary
judgment is based.’” Id. We are required to view any disputed facts in the light most favorable to
the defaulted party, in light of the policy consideration favoring the disposition of cases on their
merits. Id.
Under Rule 60(b)(1), the party seeking relief from default must at the outset show that it is
not culpable for its failure to respond. Id. The Rule itself sets forth specific grounds for such a
showing, which are “mistake, inadvertence, surprise, or excusable neglect.” Id. If this initial
showing is made, the party seeking relief can then proceed to demonstrating the two additional

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requirements for relief from default, which are a lack of prejudice to the Plaintiff, and a meritorious
defense. Id. The specific determination that neglect is excusable “takes into account the length and
reasons for the delay, the impact on the case and judicial proceedings, and whether the movant
requesting relief has acted in good faith.” Id.
Although we have great sympathy for Mr. Knowles’s loss of his brother, we find little basis
upon which to rule that the district court abused its discretion in rejecting his argument of excusable
neglect. While Knowles may be the ultimate decision-maker at 1064 Old River Road, another
employee involved in the company’s business operations could have simply contacted a lawyer about
the lawsuit and the need to file an answer or seek more time from the district court or opposing
counsel. Further, while we do not second guess Knowles’s personal grief or his obligations to his
family, it would not have taken substantial time or effort for him to make this call to a lawyer
himself. Defendants have made no showing that any such efforts were made. Further, as the district
court noted, Defendants took a full four months to make any efforts to respond to the lawsuit.
Additionally, the suit was only filed after two years of unsuccessful efforts by Plaintiffs to reach a
licensing agreement with Defendants, suggesting that the Defendants were in no way caught off
guard by the lawsuit and could have expected and prepared for litigation despite Mr. Knowles’s
familial obligations. Defendants point to no facts that would excuse their neglect but were ignored
by the district court. In light of this record, there is no basis for us to find that the district court
abused its discretion in determining that the Defendants’ neglect was not excusable.
Because the Defendants have not made a showing that their failure to respond was due to
excusable neglect or any of the other bases for relief set forth in Rule 60(b), we need not reach the

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additional factors for relief from default. The district court’s disposition of this issue is affirmed.

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