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BOURNE CO. v. HUNTER COUNTRY CLUB

July 17, 1990

BOURNE COMPANY, HENRY MANCINI d/b/a NORTHRIDGE MUSIC COMPANY, SBK ROBBINS CATALOG, INC., HARRISON MUSIC CORP. and COLGEMS-EMI MUSIC, INC., Plaintiffs,
v.
HUNTER COUNTRY CLUB, INC., Defendant



The opinion of the court was delivered by: ROSZKOWSKI

 STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE

 This action comes before the Court on cross-motions for summary judgment and other related motions. *fn1" For the reasons set forth in the opinion below, this Court finds that plaintiffs have met and adequately shown compliance with the five elements for a prima facie case of copyright infringement and, therefore, grants plaintiffs' motion for summary judgment. Further, this Court denies defendant's motion for summary judgment and strikes defendant's affirmative defenses and counterclaims. This Court finds that the 1950 Consent Decree contains specific provisions for contesting the reasonableness of a licensing fee and this Court will not usurp that authority. Further, this Court holds that defendant's motion to join ASCAP as a party to this action is denied and directs that any issues relating to the compliance or non-compliance of ASCAP with any other provisions of the 1950 Amended Consent Decree, which was entered in the Southern District of New York, must be taken up with that court as continuing jurisdiction exists in that district court for purposes of enforcement and amendment of the consent decree.

 STATEMENT OF BACKGROUND FACTS

 A. Preliminary Rulings

 Rule 56 of the Federal Rules of Civil Procedure (hereinafter "Fed. R. Civ. P."), states the following:

 
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.
 
(c) Motion and Proceedings Thereon. . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .

 Fed. R. Civ. P. 56(b) and (c). Rule 12 of the General Rules for the United States District Court for the Northern District of Illinois (hereinafter "Local Rules") supplements Rule 56 by requiring the moving party to submit the following:

 
With each motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure the moving party shall serve and file, in addition to the affidavits (if any) and other materials referred to in Rule 56 and a supporting memorandum of law, a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law including a description of the parties and all facts supporting venue and jurisdiction in this Court. That statement shall consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph. Failure to submit such a statement constitutes grounds for the denial of the motion.

 Local Rule 12(l). The local rules also mandate certain filings by non-moving party as follows:

 
Each party opposing a Rule 56 motion shall serve and file, together with opposing affidavits (if any) and other materials referred to in Rule 56(e) and a supporting memorandum of law, a concise response to the movant's statement. That response shall contain (1) a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon, and (2) a statement, consisting of short numbered paragraphs, of any additional facts which require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon. All material facts set forth in the statement required of the moving party will be deemed admitted unless controverted by the statement of the opposing party.

 Local Rule 12(m) (emphasis added).

 In the instant case, the defendant filed its motion for summary judgment on August 22, 1990. As required by the Local Rules, the defendant concurrently filed a supporting memorandum of law. Incorporated within that brief in support of their motion for summary judgment, plaintiffs included a section entitled "Statement of Facts" consisting of numbered paragraphs with specific references to affidavits and deposition testimony. While the exact letter of Rule 12(l) may not have been adhered to, this Court believes that at least the spirit of Rule 12(l) has been satisfied and this section "Statement of Facts" is consistent with Rule 12(l) and will hereafter be referred to for purposes of this summary judgment motion as Plaintiff's Rule 12(l) Statement.

 Defendant, in response to Plaintiff's Rule 12(l) Statement, submitted a Reply to Plaintiff's Rule 12(l) Statement of Material Facts. Defendant's Reply appears to comply with the intent of Local Rule 12(m) and this Court will treat and hereafter refer to defendant's reply as Defendant's Rule 12(m) Statement.

 In Defendant's Rule 12(m) Statement, defendant specifically states that "the facts relied upon by Plaintiffs are immaterial because Plaintiffs and ASCAP are estopped from asserting them by the facts alleged in this paragraph 2." Defendant's Rule 12(m) Statement at para. 2. However, pursuant to Local Rule 12(m), defendant's failure to deny any of the factual allegations contained in Plaintiffs' Rule 12(l) Statement mandates that this Court admit those facts. Therefore, that portion of the recitation of facts dealing with undisputed facts is primarily ...


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