The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
On March 15, 1983, plaintiff Frost Belt International
Recording Enterprises, Inc. d/b/a Tuff City Records ("Tuff
City") entered into a written contract with Curtis Fisher
("Fisher"), a "rap" musician, which provides generally for
Fisher to render his services as a recording artist exclusively
to Tuff City (the "Contract").*fn1 Pursuant to the Contract,
Fisher recorded a number of rap compositions, including the one
that is the subject of this litigation, "A Girl Named
Kim."*fn2 On March 23, 1985, Street Tuff Tunes and Curtis
Fisher, as Publisher, entered into a separate agreement with
Curtis Fisher, which expressly conveys to Street Tuff Tunes the
"title, words and music, and all copyrights thereof" to all
compositions written by Fisher and recorded pursuant to the
Contract (the "Standard Songwriters Contract").*fn3
On September 7, 1989, Aaron Fuchs ("Fuchs"), Tuff City's
president, "heard Marcel Hall, a rap artist professionally
known as `Biz Markie,' perform Mr. Fisher's musical composition
live on the radio station WBLS." Fuchs Aff. at ¶ 17. Knowing
that Biz Markie was signed to Cold Chillin', Fuchs immediately
telephoned Leonard Fitchelberg ("Fitchelberg"), Cold Chillin's
president, and informed him of Tuff City's rights in "A Thing
Named Kim," the name attributed to Fisher's composition "A Girl
Named Kim" as performed by Biz Markie. Fuchs Aff. at ¶ 18.
Fitchelberg stated that Biz Markie had already recorded the
song, under the title "A Thing Named Kim," for a soon to be
released album, and that it was too late to pull the song from
the album. Fuchs Aff. at ¶ 19. "At the same time, Mr.
Fitchelberg did not dispute that the composition was written by
Mr. Fisher, who was under exclusive contract with Tuff City. He
said from the outset that he just wanted to work out a monetary
On September 11, 1989, Tuff City filed a certificate of
copyright registration for "A Girl Named Kim" with the United
States Copyright Office (the "Registration Certificate"). Tuff
City's response to Registration Certificate question 2(a)
indicates the work is not one "made for hire," and Tuff City's
response to Certificate question 4 indicates that Tuff City
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 ...