United States District Court, E.D. Virginia, Alexandria Division
REPORT AND RECOMMENDATION
THERESA CARROLL BUCHANAN UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Plaintiffs' Motion for
Default Judgment (Dkt. 21). After representatives for
Defendants failed to respond to Plaintiffs' motion or to
appear at the hearing on June 28, 2019, the matter was taken
under advisement. For the reasons stated below, the
undersigned U.S. Magistrate Judge recommends that
Plaintiffs' Motion for Default Judgment be GRANTED.
January 9, 2019, Broadcast Music, Inc. ("BMI")
along with four (4) other entities (together, the
"Plaintiffs") filed this lawsuit against GT
Leesburg 2014, LLC ("GT Leesburg"), Brent Byer,
David Byer,  and Darlene Byer (together, the
"Defendants"), alleging four claims of copyright
infringement. (Compl. ¶ 24.) The alleged infringement
all took place at an establishment known as The Green Turtle,
located at 603 Potomac Station Drive, Leesburg, VA 20176 (the
"Establishment"). (Id. ¶¶ 9,
22-23.) Plaintiffs now seek an entry of default judgment that
awards them monetary damages, attorney's fees and costs,
interest, and injunctive relief. (Pl's. Mem. Supp. at 5.)
Jurisdiction and Venue
the Court can render default judgment, it must have both
subject-matter jurisdiction and personal jurisdiction over
the defaulting parties, and venue must be proper.
Court has subject-matter jurisdiction over this action. A
federal district court has original jurisdiction when an
action involves a civil action "arising under the
Constitution, laws, or treatises of the United States."
28 U.S.C. § 1331. In this case, Plaintiffs assert
copyright infringement claims against Defendants pursuant to
the Copyright Act, a federal statute. (Compl. ¶ 1.)
Accordingly, the Court has subject-matter jurisdiction over
the copyright infringement claims against Defendants pursuant
to 28 U.S.C. §§ 1331 and 1338(a).
Court has personal jurisdiction over Defendants in this
action. The inquiry to find personal jurisdiction requires
either specific jurisdiction "based on conduct connected
to the suit" or general jurisdiction based on
"continuous and systematic" activities in the forum
state. Tire Eng'g & Distrib., LLC v. Shandong
Linglong Rubber Co., 682 F.3d 292, 301 (4th Cir. 2012)
(quoting ALS Scan, Inc. v. Dig. Serv. Consultants,
Inc., 293 F.3d 707, 711 (4th Cir. 2002)).
Leesburg, a Virginia limited liability company, maintains and
operates the Establishment, which is located in this
district. (Compl. ¶ 9.) Therefore, GT Leesburg has
"continuous and systematic" activities within
Virginia to be subject to general jurisdiction. Cf.
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)
(corporations subject to general jurisdiction in places where
they are "fairly regarded as at home" (quotations
omitted)). On the other hand, Plaintiffs failed to
specifically allege the residency or domicile of Defendant
David "Brent" Byer. Nonetheless, the undersigned
finds that the Court also possesses personal jurisdiction
over Brent Byer under the specific jurisdiction inquiry as he
owns GT Leesburg, operates, maintains, and controls the
Establishment, and is directly involved with the harmful
conduct alleged in the Complaint. (Compl. ¶¶ 12-14,
18-20, 22-30.) Moreover, the undersigned also notes that
personal jurisdiction might also be appropriate as Brent Byer
was personally served while within this judicial district.
See Burnham v. Superior Court, 495 U.S. 604, 610-11
(1990); Blackson v. Blackson, 579 S.E.2d 704, 711-12
(Va. Ct. App. 2003).
similar reasons, the undersigned finds that Venue in this
action is proper in this Court pursuant to 28 U.S.C.
§§ 1391(b)(2) and 1400(a).
Service of Process
the Court can render default judgment, it must be satisfied
that all defaulting parties have been properly served.
Pursuant to Federal Rule of Civil Procedure 4(e)(2)(A), an
individual within a judicial district of the United States
may be served by delivering a copy of the summons and
complaint to the individual personally. For corporations,
partnerships, or associations, Federal Rule of Civil
Procedure 4(h)(1)(A) provides that service may be effected in
the manner prescribed in Rule 4(e)(1) for serving
individuals. Rule 4(e)(1) provides that service may be
effected pursuant to the laws of the forum state. Virginia
law provides that service on a limited liability company may
be effected by serving its registered agent. Va. Code §
13.1-1018. Rule 4(h)(1)(B) provides that service upon a
business entity may be effected by serving an officer, a
managing or general agent, or any other agent authorized by
appointment or by law to receive service of process.
January 16, 2019, Plaintiffs' process server personally
served David "Brent" Byer both individually and as
the registered agent for GT Leesburg. (Dkts. 14-16.)
Therefore, the undersigned finds that Defendants were
properly served with the summons and complaint.
Grounds for Default Judgment
entry of default judgment may be appropriate when a defendant
has failed to appear in a case. See Fed. R. Civ. P.
55. To date, Defendants have not appeared or otherwise
participated in these proceedings. On May 3, 2019, Plaintiffs
filed their Request for Entry of Default, seeking entries of
default for Defendants GT Leesburg and David
"Brent" Byer. (Dkt. 19.) On May 7, 2019, the Clerk
of the Court issued the Entry of Default for those
Defendants. (Dkt. 20.) On May 23, 2019, Plaintiffs filed
their Motion for Default Judgment. The undersigned U.S.
Magistrate Judge then held a hearing on Plaintiffs'
Motion for Default Judgment on June 28, 2019, at which no
representative for Defendants appeared. Finding the matter
uncontested, the undersigned took the matter under advisement
to issue this Report and Recommendation. (Dkt. 26.)
FINDINGS OF FACT
full review of the pleadings and the record in this case, the
undersigned finds that Plaintiffs established the following
BMI is a Delaware corporation with its principal place of
business in New York, New York. (Compl. ¶ 3.) The other
Plaintiffs are a mixture of corporations, unincorporated
business associations, and trusts. (Id. ¶¶
5-8.) The other Plaintiffs own the copyrights in the musical
compositions that are the subject of this suit. (Id.
¶ 4; Williams Decl. ¶ 4.)
through agreement with copyright owners, acquires
non-exclusive performance rights to musical compositions.
(Compl. ¶¶ 3-4; Williams Decl. ¶ 2.) BMI has
been granted the right to license the public performance
rights in fourteen (14) million copyrighted musical
compositions ("BMI Repertoire"). (Compl. ¶ 3;
Mem. Supp. at 2.) Upon acquiring those rights, BMI then
grants broadcasters and the owners and operators of public
establishments such as concert halls and restaurants, the
right to publicly perform any of the works in BMI's
Repertoire through "blanket license agreements."
(Williams Decl. ¶ 2.) BMI operates as a non
profit-making performing rights organization; all money it
collects in license fees is distributed as royalties to the
copyright owners after deducting operating expenses and
reasonable reserves. (Id. ¶ 3.) The Plaintiffs
in this case granted BMI the right to publicly perform their
copyrighted music compositions and to issue public
performance license agreements to music users. (Id.
GT Leesburg is a Virginia limited liability company that
operates, maintains, and controls The Green Turtle, located
at 603 Potomac Station Drive, Leesburg, Virginia 20176.
(Compl. ¶ 9; Mullaney Decl. ¶ 3.) Brent Byer is an
owner of GT Leesburg. (Compl. ¶¶ 13, 19.) He is
responsible for the operation and management of both GT
Leesburg and the Establishment- having a direct financial
interest in both. (Id. ¶¶ 12-14, 18-20.)
to June 2016, BMI learned that the Establishment publicly
performed copyrighted music works in BMI's Repertoire
without permission. (Compl. ¶ 22; Mullaney Decl. ¶
3.) On June 1, 2016, BMI sent a letter to Defendants,
advising them that a license was necessary in order to
perform music in BMI's Repertoire. (Mullaney Decl. ¶
3.) BMI included an informational brochure and a license
agreement with the June 1st correspondence. (Id.)
Defendants never responded. (Id.)
the next several months, BMI sent additional letters to
Defendants. (Id. ¶ 4.) Defendants similarly did
not respond to any of those letters either. (Id.)
December 12, 2016, BMI sent Defendants a cease and desist
letter instructing them to stop all public performances of
BMI-licensed music. (Id. ¶ 5.) BMI followed up
that initial letter with approximately twelve (12) additional
cease and desist letters. (Id. ¶¶ 5-7.)
addition to the letters, BMI licensing personnel contacted or
attempted to contact Defendants on numerous occasions.
(Id. ¶¶ 8-9.) Specifically, BMI personnel
visited the Establishment on at least one (1) occasion and
telephoned on twenty-seven (27) other occasions.
(Id. ¶ 9.) On several of these occasions, BMI
licensing personnel spoke with personnel associated with the
Establishment's operation. (Id.) Irrespective of
BMI's concerted efforts, ...