of the copyright to "A Girl Named Kim" "by written agreement."
Fuchs Aff. Exhibit "B".
On October 18, 1989, at a meeting at which Tuff City General
Counsel, Daniel Nooger ("Nooger"), and Fuchs had with
Fitchelberg at Cold Chillin's office, Fitchelberg stated that
Cold Chillin's attorney was Alan Skiena, Esq. ("Skiena"), who
would draw up a written settlement agreement for their review.
Fuchs Aff. at ¶ 22. Based on Fitchelberg's representation that
Skiena was Cold Chillin's attorney, plaintiff sent by facsimile
transmission two letters, dated October 27 and November 2,
1989, respectively, concerning plaintiff's failure to receive a
draft settlement agreement. Fuchs Aff. at ¶ 23, Exhibit "G". On
November 14, 1989, Skiena contacted Nooger and advised that he
was not Cold Chillin's attorney but had been Biz Markie's
attorney, and was now being replaced by Roderick Plummer, Esq.
("Plummer"). Fuchs Aff. at ¶ 24.
By certified letter dated November 14, 1989, Fuchs wrote, at
Fitchelberg's request, to Bert Padell of the accounting firm of
Padell, Nadell, Fine, Weinberger & Co., concerning resolution
of the dispute and advised that "[i]f this matter is not
resolved by September 21 [sic], we will take legal action to
have a restraining order issued to stop the manufacture,
distribution and sale of the infringing recording." Fuchs Aff.
Exhibit "H". Mr. Padell responded by indicating, in a telephone
conversation with Nooger, that "he was Biz's accountant only,
and not Cold Chillin's." Fuchs Aff. at ¶ 26.
By certified letter dated November 17, 1989, Fuchs wrote
directly to Fitchelberg. Fuchs Aff. Exhibit "H". The closing
paragraph of this letter reiterates the possibility of imminent
litigation and provides: "[i]f we do not receive a written
ratification of our [settlement] agreement by November 21, we
will take legal action to have a restraining order issued to
stop the manufacture, distribution and sale of the infringing
recording." Fuchs Aff. Exhibit "H".
On November 20, 1989, Nooger spoke with Plummer, who advised
that as of November 17, 1989, he was Biz Markie's attorney.
Affidavit of Daniel Nooger, sworn to on June 6, 1989, at ¶ 7
("Nooger Aff."). On November 29, 1989, Nooger again spoke with
Plummer and advised Plummer that Tuff City would commence suit
against Cold Chillin' if the dispute was not promptly resolved.
Having failed to resolve the dispute, Tuff City commenced
this action on December 15, 1989, and on that date caused a
copy of the summons and complaint to be personally served upon
Cold Chillin'. On January 4, 1990, Cold Chillin's time to
answer or move with respect to the complaint expired and no
request to extend such time had been directed to plaintiff or
On January 26, 1990, Plummer's secretary phoned Nooger to
request an "extension" though she did not state on whose behalf
the extension was sought; Nooger advised Plummer's secretary
that he would "get back to her" but did not. Nooger Aff. at
¶ 13. Thereafter, Plummer made no further attempt to contact
Nooger. Also on January 26th, Tuff City filed for entry of a
default judgment,*fn4 which judgment subsequently was filed
with the Clerk on February 8, 1990.*fn5
On February 9, 1990, Nooger received a telephone call from
Robert Cinque, Esq. ("Cinque") of the firm of Cinque & Cinque,
who stated that he was Cold Chillin's attorney. Cinque
requested that plaintiff stipulate to vacate the default
judgment. Plaintiff refused to do so. By letter dated February
15, 1990, Cold Chillin', by its attorneys, Vladeck, Waldman,
Elias & Engelhard, P.C., wrote to the Court requesting
permission to make the instant motion, which permission was
Defendant Cold Chillin' contends that the default judgment
against it should be vacated and argues that (a) Cold Chillin'
has meritorious defenses to plaintiff's claim, (b) plaintiff
will not suffer "substantial prejudice" if the default judgment
is vacated and (c) Cold Chillin' is entitled to have the
default judgment vacated regardless of a finding of willful
failure to timely respond to the complaint. Plaintiff
strenuously opposes the motion and contends that Cold Chillin's
default was willful and part of an overall dilatory strategy,
and that Cold Chillin's defenses are frivolous and barred by
the express terms of the Contract. For the reasons set forth
below, the Court finds that Cold Chillin' has failed to
establish good cause for setting aside the default judgment,
and its motion should be denied.
In accordance with Rule 55 of the Federal Rules of Civil
Procedure, the court "[f]or good cause shown . . . may set
aside an entry of default and, if a judgment by default has
been entered, may likewise set it aside in accordance with Rule
60(b)." Fed.R.Civ.P. 55(c). Rule 60(b) provides, in relevant
the court may relieve a party or a party's legal
representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake,
inadvertence, surprise or excusable neglect; (3)
fraud . . . misrepresentation, or other misconduct
of an adverse party; (4) the judgment is void; . .
. or (6) any other reason justifying relief from
the operation of the judgment. . . .
Fed.R.Civ.P. 60(b). In determining whether to set aside a
default judgment*fn6 a court must consider (1) whether the
default was willful, (2) whether the moving party has presented
a meritorious defense, and (3) whether the party who secured
the default would be prejudiced by setting it aside. See Brock
v. Unique Racquetball and Health Clubs, Inc., 786 F.2d 61 (2d
Cir. 1986); Marziliano v. Heckler, 728 F.2d 151, 156 (2d Cir.
1984); Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir. 1983).
Notwithstanding the general rule in this Circuit that "defaults
are not favored," Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.
1981), and "the strong policies favoring the resolution of
genuine disputes on their merits," see Traguth, supra, 710 F.2d
at 94, the Court declines to set aside the default judgment on
the clear and convincing evidence of Cold Chillin's willful
default and the absence of a meritorious defense to plaintiff's
I. Cold Chillin's Default
The Court draws the inescapable conclusion that Cold
Chillin's default in responding to the complaint was willful
rather than the result of any neglect, excusable or otherwise.
As a result of the numerous communications between the parties
(and Cold Chillin's designees on certain occasions) Cold
Chillin' was fully apprised of the imminent litigation against
it. Plaintiff's in-hand delivery of a copy of the summons and
complaint to Cold Chillin's managing agent at Cold Chillin's
1966 Broadway offices establishes not only proper service but
that the service effected insured immediate delivery of the
process to a Cold Chillin' management-level employee rather
than a mere agent designated to accept process. Indeed, Cold
Chillin' neither contests the manner of service nor argues that
the process never reached a management-level official.
In fact, there is every indication that Cold Chillin'
deliberately ignored the summons and complaint. Despite the
parties' extensive submissions,*fn7 Cold Chillin' fails to
submit an affidavit from a single person with personal
knowledge of the circumstances of its default in responding to
the complaint, and advances absolutely no explanation
for its default.*fn8 Such utter failure to explain the default
effectively precludes a finding of excusable neglect.
Standard Newspapers, Inc. v. King, 375 F.2d 115 (2d Cir. 1967);
Original Appalachian Artworks v. Yuil Int'l Trading Corp., 105
F.R.D. 113 (S.D.N.Y. 1985); Robinson v. Bantam Books, Inc., 49
F.R.D. 139 (S.D.N.Y. 1970). Moreover, Cold Chillin's having
instructed plaintiff to contact Biz Markie's attorneys (Mr.
Plummer) and accountants (the Padell firm) also indicates that
Cold Chillin' was attempting to shift responsibility for
resolving the matter to Biz Markie both prior and subsequent to
service of process. Cold Chillin's apparent stonewalling in
this fashion, after admitting that "A Thing Named Kim" was
written by Mr. Fisher and indicating that Cold Chillin' wanted
to work out a monetary settlement, tends to confirm its
dilatory strategy and the wilfulness of its default.
In reaching the conclusion that Cold Chillin's default was
wilful, the Court need not speculate as to whether any animus
toward this Court or perceived strategic advantage motivated
Cold Chillin's default. In either case, Cold Chillin', having
made its decision to ignore this action, will be bound to it.
Cf. Brand v. NCC Corp., 540 F. Supp. 562 (E.D.Pa. 1982).
However, in light of established precedent in this Circuit, see
Marziliano v. Heckler, supra, the Court declines to follow the
approach of the district court in Brand, in which the court
indicated that where a party intentionally chooses to ignore a
action, a default judgment should not be set aside regardless
of meritorious defenses. 540 F. Supp. at 564.*fn9 In accordance
with Marziliano, therefore, the Court shall consider the merit
of Cold Chillin's defenses to plaintiff's claim.
II. Proffered Defenses
Cold Chillin' proffers various defenses to plaintiff's
copyright claim, including the following: (1) plaintiff is not
the owner of the copyright to the composition in question; (2)
there has been no infringement with respect to the "music" (as
opposed to the lyrics, which Cold Chillin' does not dispute are
identical to those of the Fisher composition, "A Girl Named
Kim"); and (3) plaintiff's claims for conversion and malicious
interference with business opportunities are preempted by the
Copyright Act, warranting dismissal of the complaint.
A. Copyright Ownership
Cold Chillin's first claimed defense is that plaintiff did
not obtain a valid copyright to "A Girl Named Kim" because the
Contract does not apply to that song. Cold Chillin' reasons as
The recording contract provides that plaintiff
acquires ownership rights in Master Recordings and
that all Master Recordings are works made for
hire. In its application to the Copyright office,
however, plaintiff stated that "A Girl Named Kim"
was not a work made for hire. Because the recording
"A Girl Named Kim" was not a work made for hire, it
was not a Master Recording under the recording
contract, and Tuff City Records did not acquire
ownership rights in the song.
Defendant's Memorandum at 3 ("Def. Mem."). In light of the
operative language of the Contract, Cold Chillin's argument is