Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FROST BELT v. COLD CHILLIN' RECORDS

November 8, 1990

FROST BELT INTERNATIONAL RECORDING ENTERPRISES, INC., D/B/A TUFF CITY RECORDS, PLAINTIFF,
v.
COLD CHILLIN' RECORDS, "JOHN DOE" AND "RICHARD DOE," DEFENDANTS.



The opinion of the court was delivered by: Kram, District Judge.

MEMORANDUM OPINION AND ORDER

BACKGROUND

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 settlement." Id.

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 obtained ownership 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 its attorneys.

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 granted.

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.

DISCUSSION

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.