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Bertam Music Co., Flyte Tyme v. P & C Enterprises

August 29, 2011

BERTAM MUSIC CO., FLYTE TYME TUNES, EMI APRIL MUSIC INC., SOUP SANDWICH MUSIC, GOLD & IRON MUSIC PUBLISHING, XM MUSIC, LELLOW PRODUCTIONS INC., BOOK OF DANIEL MUSIC, EMI VIRGIN MUSIC, INC., MASS CONFUSION MUSIC, WB MUSIC CORP.,
MUSIC, INC., TONI ROBI MUSIC, RODSONGS, JOBETE MUSIC CO., INC., BLACK BULL MUSIC, INC., CANCELLED LUNCH MUSIC, UNIVERSAL-POLYGRAM INTERNATIONAL PUBLISHING, INC., DE SWING MOB, INC., ACROSS 110TH STREET PUBLISHING, AL B. SURE INDUSTRIES, INC., E/A MUSIC, INC., MONTY SEWARD PUB., CO., MAKE IT BIG MUSIC, BROCKMAN ENTERPRISES, INC. (LIBREN MUSIC DIVISION), BRENDA RICHIE PUBLISHING, AND UNCLE RONNIE'S MUSIC COMPANY, INC., PLAINTIFFS,
v.
P & C ENTERPRISES, INC., LONNIE E. CLARK, AND J.W. PIRTLE, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED Monday, 29 August, 2011 04:45:23 PM Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the amount of attorneys' fees to be awarded to Plaintiffs and on Plaintiffs' Motion to Substitute Parties for Deceased Defendant Lonnie E. Clark (#55). Following careful consideration of the arguments of the parties, Plaintiffs are awarded attorneys' fees in the amount of $77,001.25 and costs in the amount of $7,107.99 from Defendants P & C Enterprises, Inc. (P & C) and J.W. Pirtle (Pirtle). In addition, Plaintiffs' Motion to Substitute Parties (#55) is GRANTED as to Pirtle. A hearing will be held on September 8, 2011, at 3:30 p.m. regarding Joan Clark's Objection to Motion to Substitute Parties (#63).

BACKGROUND

On July 5, 2011, this court entered an Opinion (#51) in this case. This court granted Plaintiffs' Motion for Summary Judgment (#35) and entered judgment in favor of Plaintiffs and against Defendants P & C and Pirtle. This court concluded that the copyright infringement in this case was willful and awarded $48,000 in statutory damages, consisting of $3,000 for each of the 16 instances of copyright infringement, plus post-judgment interest.

This court also concluded that Plaintiffs made a clear showing of past infringement and, frankly, not just a substantial likelihood but in actuality almost a certainty of future infringement. This court noted that WBCP, the radio station controlled by Defendants P & C and Pirtle, continues to broadcast music and makes no efforts to ensure that it is not broadcasting copyrighted music without authorization. In considering all of the relevant factors, this court found that a permanent injunction is appropriate under the circumstances of this case. This court therefore entered a permanent injunction, pursuant to 17 U.S.C. § 502, prohibiting Defendants P & C and Pirtle and/or their officers, agents, servants, employees, attorneys, heirs, successors, assigns, and other persons who are in active concert or participation with them from publicly performing any and all of the musical compositions in the repertory of the American Society of Composers, Authors and Publishers (ASCAP) over WBCP or any other station or any other broadcast facility owned or operated by them, unless they shall have obtained permission in advance of the performance from the copyright owners involved or a license from ASCAP, their performing rights society.

This court also concluded that Plaintiffs are entitled to their reasonable attorneys' fees and costs in litigating this case pursuant to 17 U.S.C. § 505. This court noted that an award of attorneys' fees and costs is appropriate in order to deter any further infringement on the part of Defendants, particularly because they have engaged in willful infringement. This court further stated that attorneys' fees are appropriate because Defendants were successfully sued for copyright infringement twice before and have not, in this action, asserted any non-frivolous defenses or provided any explanation for their decision to perform copyrighted songs after their license with ASCAP was terminated. This court concluded that, in fact, the record in this case supports a finding that Defendants treated the copyright laws with disdain. This court stated that, "[u]nder these circumstances, attorney's fees are an appropriate means of compensating Plaintiffs for enforcing copyright laws and penalizing Defendants for willfully violating the law with no reasonable basis or non-frivolous justification." This court stated that the amount of Plaintiffs' reasonable fees would be determined once Plaintiffs' counsel submitted an affidavit setting forth the attorneys' fees and costs billed in this case. This court allowed Plaintiffs' counsel 14 days to file an affidavit. This court also allowed Defendants P & C and Pirtle 14 days to file any objections to the amount of the attorneys' fees requested.

This court also denied the Motion to Dismiss (#36) seeking the dismissal of Defendant Lonnie Clark from this action based upon his death on December 10, 2010. In doing so, this court agreed with the conclusion of Magistrate Judge David G. Bernthal in his Report and Recommendation that the 90-day clock set out in Rule 25(a) of the Federal Rules of Civil Procedure had not started running and there was no basis for granting Clark's motion to dismiss. This court determined that, based upon the Seventh Circuit's decision in Atkins v. City of Chicago, 547 F.3d 869, 873 (7th Cir. 2008), a notice of suggestion of death is not effective to start the 90-day clock for substituting the proper party under Rule 25(a) unless it is served on "nonparties with a significant financial interest in the case, namely the decedent's successors . . . or personal representative." This court noted that the court in Atkins stated that "the cases are unequivocal that an obviously interested party [such as the spouse of the decedent] must be served for the 90-day clock to start running." Atkins, 547 F.3d at 873. This court held that because neither the Suggestion of Death (#30) nor the Notice (#44) filed by Defendants' counsel were served on Clark's spouse or sons, the 90-day clock has not started running. This court therefore accepted the Report and Recommendation (#46) and concluded that the Motion to Dismiss (#36) must be denied. This court then stated:

This does leave things in a rather uncertain posture, however, since Defendants' counsel has indicated that he reasonably believes "that no representative has or will be appointed for the deceased Defendant, Lonnie Clark."*fn1 If Plaintiffs wait to be informed of the proper successor or representative for Clark, it appears they could be waiting a very long time and the portion of this case related to the claim against Clark would remain open and unresolved a very long time as well.

This court notes that, generally, the proper party for substitution is the person who has the legal right and authority to defend against the claims brought against the deceased party. See Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985). Rule 25(a) recognizes that the proper party usually will be the representative of the decedent's estate who has been appointed under state law. The rule also uses the word "successor," which indicates that a person may be substituted as a party even though the person has not been formally appointed as a representative or administrator. See 6 James Wm. Moore et al., Moore's Federal Practice § 25.12[3] (Matthew Bender 3d ed. 2010). Defendants have pointed out that Illinois law provides:

(2) If a person against whom an action has been brought dies and the cause of action survives and is not otherwise barred, his or her personal representative shall be substituted as a party. If no petition has been filed for letters of office for the deceased's estate, the court, upon motion of a person bringing an action and after the notice to the party's heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action. If a party elects to have a special representative appointed under this paragraph (2), the recovery shall be limited to the proceeds of any liability insurance protecting the estate and shall not bar the estate from enforcing any claims that might have been available to it as counterclaims.

If a motion to substitute is not filed within 90 days after the death is suggested of record, the action may be dismissed as to the deceased party. 735 Ill. Comp. Stat. 5/2-1008(b)(2). Defendants appear to be suggesting that Defendant Clark must be dismissed because no motion to substitute was filed within 90 days after Clark's death was suggested of record. However, Rule 25(a) governs the procedure for substitution following a party's death, even where the court must apply state substantive law. Servidone Constr. Corp. v. Levine, 156 F 3d 414, 416 (2nd Cir. 1998). This court has already concluded that the 90 day time period set out in Rule 25(a) has not begun to run. This court also agrees with Plaintiffs that Defendants' counsel has been ordered to notify Plaintiffs' counsel of the proper successor, representative or other special administrator to substitute. This court therefore concludes that Defendants' counsel must make every attempt to expeditiously determine the proper successor or representative to substitute in this case. However, if this information is not provided, Plaintiffs' counsel also must make an effort to determine the proper successor or representative so that a motion for substitution of parties can be made as soon as possible and this case can be finally resolved.

ANALYSIS

I. MOTION TO SUBSTITUTE ...


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