Opinion
96 Civ. 7872 (JFK), 97 Civ. 0089 (JFK), 97 Civ. 1013 (JFK), 97 Civ. 1014 (JFK)
March 28, 2002
For Plaintiffs Desmond Music Company, WB Music Corp., Warner/Chappell Music Inc., Alice Coltrane, Music Sales Corporation, Windswept Pacific Entertainment Co. Inc., Shapiro, Bernstein Co. Inc. and Irving Berlin Music Company:
Silverman Shulman Baker, P.C., New York, New York Of Counsel: Scott L. Baker, Esq.
Defendant, Pro Se:
Robert W. Schachner, Fort Lauderdale, Florida
OPINION and ORDER
Before the Court are Defendant Robert W. Schachner's pro se motions, pursuant to Fed.R.Civ.P. 60(b), to vacate default judgments entered against him in four related but distinct cases: (1) Desmond Music Co. v. Schachner. et al., No. 96 Civ. 7872 ("Desmond Music") (2) WB Music Corp. et al. v. Schachner. et al., No. 97 Civ. 0089 ("WB Music"); (3) Windswept Pacific Entertainment Co. v. Schachner, et al., No. 97 Civ. 1013 ("Windswept"); and (4) Shapiro, Bernstein Co. et al. v. Schachner, et al., No. 97 Civ. 1014 ("Shapiro"). Because all four motions involve an interrelationship of parties and substantially similar legal issues, the Court will dispose of them together in this Opinion and Order. Through the same counsel, Plaintiffs in all of these cases oppose the motions. For the reasons stated below, the Court denies each motion.
Actually, Schachner purports to bring these pro se motions on behalf of the corporate defendants in these cases as well. This tactic not only flouts the well-settled rule that a corporation may appear in federal court only through a licensed lawyer, see Pecarskv v. Galaxiworld.com Limited, 249 F.3d 167, 172 (2d Cir. 2001) (holding that a corporation must appear in court with counsel, and cannot be representedpro se by its principal), but also this Court's numerous orders directing Schachner, an officer in each of these companies, to retain counsel for the defendant corporations. See, e.g., Order, Dec. 12, 1996, Case No. 96 Civ. 7872 ("The two defendant corporations are required to be represented by counsel."). Because these defendants still lack legal representation, the Court will treat the present motions as ones by Schachner in his individual capacity only. Consequently, the default judgments entered against the corporate defendants remain intact and unchallenged.
Discussion
I. Default Judgment Standards
Rule 55(c) provides that "[f]or good cause shown the court may set aside an entry of default and, if a judgment of default has been entered, may likewise set it aside in accordance with Rule 60(b)." Fed.R.Civ.P. 55(c). Rule 60(b), in turn, contains six subsections that set forth various grounds under which a court may relieve a party from a default judgment: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from operation of the judgment. See Fed.R.Civ.P. 60(b). Aside from determining if one of these grounds exists, a court must take into account certain equitable factors as well: specifically, the willfulness of the default, the existence of a meritorious defense, and the level of prejudice to the non-defaulting party. See Pecarsky, 249 F.3d at 171. This three-prong equitable standard balances the competing interests in favoring an adjudication on the merits and in protecting the finality of judgments that underlie Rule 60(b) See House v. Secretary of Health Human Services., 688 F.3d 7, 9 (2d Cir. 1982) ("Properly applied, [Rule 60(b)] preserves a balance between serving the ends of justice and ensuring that litigation reaches an end within a finite period of time.")
II. Desmond Music Action
With respect to the Desmond Music action, Schachner moves, pursuant to Rule 60(b), for relief from the September 23, 1997 default judgment entered in favor of plaintiff Desmond Music Company. He does so despite the fact that no default judgment ever was issued against him in Desmond Music because, on November 13, 1996, he timely filed an answer to the complaint in that case. Because the defendant corporations in Desmond Music never retained counsel, this Court did enter default judgments against them on September 23, 1997. Presumably on their behalf, Schachner now brings a pro se motion seeking relief from these judgments. As explained above, this Court will not and cannot entertain such a motion. See Pecarsky, 249 F.3d at 172. Accordingly, the motion to vacate the default judgments in the Desmond Music action is denied, and the Court directs the parties to update the Court, in writing, on the status of this case by April 12, 2002. Thereafter, the Court will schedule a pre-trial conference in this matter.
On March 26, 1997, Schachner filed a bankruptcy petition, which automatically stayed all actions against him pursuant to 11 U.S.C. § 362(a). See Baker Decl. Ex. 33. But by order dated August 15, 1997, the bankruptcy court lifted that stay so that this action could proceed. See id. ¶ 30; Ex. 43.
III. WB Music Action
In regards to the WB Music action, Shachner moves, pursuant to Rule 60(b), for relief from the default judgment entered on September 23, 1997 in favor of plaintiffs WB Music Corp., Warner/Chappell Music Inc. d/b/a Chappell and Company, Warner Brothers, Inc., Alice Coltrane d/b/a Jowcol Music, and Music Sales Corporation (collectively "WB Music Plaintiffs") For the reasons stated below, Schachner's motion is denied.
A. Factual Background
WB Music Plaintiffs are the copyright owners of certain musical compositions, including one entitled "My Funny Valentime." On January 7, 1997, the plaintiffs filed suit against Schachner, alleging that he, among others, committed copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq., by distributing phonorecords embodying these songs without authorization. See First Amended Compl. ¶¶ 14-18. Once WB Music Plaintiffs filed the complaint with the court, they duly arranged for service of process on Schachner individually and as an officer of the defendant corporations. After amending the complaint as of right, WB Music Plaintiffs served the amended complaint on each defendant by first-class mail on January 24, 1997 and personally served Schachner on January 28, 1997. See Baker Decl. ¶¶ 18-19. This Court held an initial case conference on January 28, 1997, during which the Court instructed Schachner to retain counsel for the defendant corporations. See id. ¶ 6. To this end, the Court directed that counsel was to appear by February 28, 1997 and was to answer the complaint by March 21, 1997. See id. ¶ 21. The Court also granted all of the defendants an extension of time to answer the amended complaint from February 11 to March 21, 1997, warning that should they fail to do so, the plaintiffs could then move for default judgments against all defendants on or after March 26, 1997. See id.
Following the conference, Schachner made a time-sensitive settlement offer, threatening that in the event that WB Music Plaintiffs refused the offer, then Schachner would file for personal bankruptcy protection. See Baker Decl. ¶ 23; Exs. 32-33. Despite this pressure, WB Music Plaintiffs did not accept the settlement proposal. On March 26, 1997, Schachner followed through on his threat by filing a bankruptcy petition, which stayed all actions against him pursuant to 11 U.S.C. § 362(a). See id.; Ex. 33. Before the bankruptcy court, WB Music Plaintiffs moved for relief from the automatic stay to permit this action to proceed. By order dated August 15, 1997, the bankruptcy court granted that motion. See id. ¶ 30; Ex. 43. This Court then entered a default judgment against Schachner, among others, on September 23, 1997, after he failed to respond to the complaint. On September 9, 1998, Schachner attempted to bring a motion to vacate the default judgment, but the Court ordered those papers withdrawn because Schachner failed to comply with the Court's rule requiring that before a party can file a motion, it first must be fully briefed. See Order, dated July 29, 1999. Thereafter, on October 16, 2000, this Court again struck Schachner's motion to vacate the default judgment because he again failed to fully submit the motion. Specifically, the October 16th Order states: "The defendant has delayed for many months the full submission of its motion to vacate the default judgments. As a result, the Court directed, by order dated September 26, 2000, that if the motion was not fully submitted by October 6, 2000 it would be withdrawn without prejudice. As of the date of this order, the parties have not fully submitted the motion at issue. The Court orders that the motion be withdrawn without prejudice." Order, dated October 16, 2000. The Court allowed Schachner to renew his motion, and he now urges this Court to grant him relief, pursuant to Fed.R.Civ.P. 60(b)(1) and (4), from the default judgment entered in WB Music.
B. Rule 60(b)(1) Relief
Schachner invokes Rule 60(b)(1), which authorizes a court to vacate a default judgment on the ground of mistake. See Fed.R.Civ.P. 60(b)(1). Schachner argues that his erroneous belief that filing for bankruptcy protection insulated him from an adverse judgment constitutes a "mistake" within the meaning of Rule 60(b)(1) The Court disagrees. There is no mistake here — to the contrary, Schachner made a deliberate, tactical decision to file for bankruptcy rather than answer or otherwise respond to the WB Music complaint. Because Schachner willfully chose this litigation strategy, his subsequent displeasure with the consequences of that decision is not a sufficient basis to establish the mistake necessary to warrant Rule 60(b)(1) relief. See Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir. 1986) ("Mere dissatisfaction in hindsight with choices deliberately made . . . is not grounds for finding the mistake, inadvertence, surprise or excusable neglect necessary to justify Rule 60(b)(1) relief."); see also Cashner v. Freedom Stores, 98 F.3d 572, 577 (10th Cir. 1996) ("Rule 60(b)(1) relief is not available for a party who simply misunderstands the legal consequences of his deliberate acts.");Otoe County Nat'l Bank v. W P Trucking, 754 F.2d 881, 883-84 (10th Cir. 1985) (upholding default judgment where a defendant failed to answer a complaint because he mistakenly believed that further proceedings against him had been stayed). As such, Schachner has failed to show any "excusable neglect, mistake, inadvertence or surprise" under Rule 60(b)(1).
C. Relief From Default Due to Lack of Notice
Schachner argues that the default judgment entered against him in this case is void under Rule 60(b)(4) because he never received notice of the application for a default judgment as called for by Rule 55(b)(2). Rule 55(b)(2) requires three days notice prior to the entry of a default judgment against a defendant that has appeared in the action. See Fed.R.Civ.P. 55(b)(2). An appearance under Rule 55(b)(2) is broadly defined and is not limited to a formal court filing. See Martha Stewart Living Omnimedia LLC. v. Beers Flower Shop, Inc., No. 98 Civ. 3398, 1998 WL 646648, at *3-4 (S.D.N.Y. Sept. 21, 1998). Assuming arguendo that Schachner made an appearance in this case, as evidenced by his pro se participation in the initial case conference, notice was required. This procedural flaw, however, does not automatically lead to vacatur of the default judgment, despite Schachner's argument to the contrary.
Indeed, failure to give the three-day notice required by Rule 55(b)(2) generally renders the default judgment voidable under Rule 60(b)(6) rather than void under Rule 60(b)(4). See id. at *4; Traveltown Inc. v. Gerhardt Investment Group, 577 F. Supp. 155, 157 (N.D.N.Y. 1983) ("Where the three day notice requirement of Rule 55(b)(2) has not been complied with, the default judgment is generally regarded as voidable under Rule 60(b)(6) rather than void under Rule 60(b)(4)."). In determining whether to set aside a judgment as voidable, "lack of notice is merely one consideration to be weighed by the court in exercising its discretion."Martha Stewart, 1998 WL 646648, at *4 (quoting Wright, Miller Kane, Civil 2d § 2695). Therefore, a court must also employ the three-prong equitable standard discussed earlier, which requires that the movant establish: (1) he has a meritorious defense; (2) he did not willfully engage in culpable behavior that led to the default; and (3) a lack of unfair prejudice to the adverse party if relief from default is granted.See id. If a movant fails to satisfy any one of these factors, a court can refuse to vacate the default judgment. See Mount Vernon Fire Insur. Co. v. Riccobono, No. 98 Civ. 1213, 1998 WL 777863, at *5 (S.D.N.Y. Sept. 30, 1999).
Schachner contends that he has a meritorious defense to the copyright infringement charges in WB Music because he previously obtained "approximately 89 licenses and in no way engaged in intentional or willful violation of copyright law." Def.'s WB Music Mem. ¶ 11. Although at this stage the asserted defense need not be ultimately persuasive, the movant "must present a defense with a level of specificity that directly related to the allegations set forth in the complaint and raises a serious question as to the validity of those allegations." Blau v. Kestler, No. 01 Civ. 3689, 2002 WL 48672, at *3 (S.D.N Y Jan. 11, 2002) (quoting Building Service 32B-J Health Fund v. Impact Real Estate Management, Inc., No. 00 Civ. 1343, 2000 WL 1530009, at *4 (S.D.N.Y. Oct. 16, 2000)). Schachner fails to make such a showing. Even though Schachner claims to have 89 licenses, he never asserts that he had a license permitting the use of the songs at issue here. Schachner does not refute the charge that his companies used the copyrighted songs without authorization — quite the contrary, Schachner actually admitted that the defendant corporations produced and distributed the allegedly infringing phonorecords. See Baker Decl. Exs. 13-17. To be sure, Schachner fails to raise even the slightest question about the validity of the allegations in the complaint. Furthermore, as WB Plaintiffs point out, to prove copyright infringement, a plaintiff need not prove intent, so the fact that Schachner claims that he did not intentionally violate the Copyright Act provides no defense to an infringement claim. See Feist Publ'ns., Inc. v. Rural Tel. Servs., Inc., 499 U.S. 340, 361 (1991) ("To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original."). Because Schachner fails to present a meritorious defense, this Court need not consider the remaining two factors governing the analysis, namely, the existence of willful conduct and the possible prejudice to WB Plaintiffs. See Mount Vernon Fire Insur., 1998 WL 777863, at *5; see also TCI Grouo Life Insur. Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001) ("If, however, the defendant presents no meritorious defense, then nothing but pointless delay can result from reopening the judgment." (citing Hawaii Carpenters' Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir. 1986))). That said, the Court finds that given Schachner's deliberate decision not to answer or otherwise respond to the complaint here, an issue the Court elaborated upon earlier in this decision, his default in this case was willful. Schachner, therefore, fails to meet the equity-driven standard necessary to obtain relief from the WB Music default judgment.
Accordingly, Schachner's motion to set aside the default judgment in the WB Music action is denied. III. Windswept and Shapiro Actions
In his renewed application for relief, Schachner further argues that the Court should set aside the default judgment at issue because WB Music Plaintiffs failed to respond to his Verified Motion for Relief From Default Judgment, filed on September 9, 1998. Schachner misrepresents the events surrounding his initial quest for relief. Indeed, the WB Plaintiffs were under no obligation to respond to Schachner's September 9th motion in light of the fact that this Court struck those papers by Order dated July 29, 1999. This argument provides no grounds for relief.
With respect to the Windswept and Shapiro actions, Schachner moves, under Rule 60(b), for relief from the default judgments issued on August 25, 1997 in favor of plaintiff windswept Pacific Entertainment Company d/b/a Longitude Music Co ("Windswept") and in favor of plaintiffs Shapiro, Bernstein Co. Inc. and Irving Berlin Music Company (collectively "Shapiro Plaintiffs"). The Court will discuss the motions in these two cases together given that the cases involve near-identical factual backgrounds and legal issues. For the reasons stated below, Schachner's motions are denied.
A. Factual Background
Windswept Action
On February 13, 1997, Windswept, the copyright owner of certain musical compositions, filed suit against Schachner, among others, claiming that he committed copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq., by making and distributing phonorecords containing these songs without authorization. See Compl. ¶¶ 7-9. According to a process server, on February 18, 1997, Schachner, both individually and as a registered representative of the defendant corporations, received personal service of the Windswept complaint. See Harbaugh Decl. ¶ 5. After four failed attempts, on February 18, 1997, the process server finally served process on Schachner at his home by handing him the Windswept summons and complaint and the Shapiro summons and complaint, in addition documents requesting discovery. See id. ¶ 5. Schachner denies receiving service. The defendants were required to answer or otherwise respond to the Windswept complaint by March 14, 1997. None of the defendants ever responded. On March 26, 1997, Schachner filed a bankruptcy petition, which automatically stayed all actions against him under 11 U.S.C. § 362(a). See Baker Decl. ¶ 23; Ex. 33. In the bankruptcy proceeding, Windswept made a motion for relief from the automatic stay to enable this case to proceed. By order dated August 17, 1997, the bankruptcy court granted that motion.See id. ¶ 30; Ex. 43. Thereafter, on August 25, 1997, this Court issued the default judgment against. Schachner, among others, because he failed to answer or otherwise respond to the Windswept complaint. Prior to the instant motion, on September 9, 1998, Schachner attempted to file a motion to vacate the Windswept default judgment, but by Order dated July 29, 1999, the Court ordered those papers withdrawn because Schachner had failed to fully submit the motion.Shapiro Action
On February 12, 1997, Shapiro Plaintiffs, the owners of certain copyrighted musical compositions, filed suit against Schachner, among others, claiming that they committed copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq., by producing and distributing phonorecords containing these songs without authorization.See Comp. ¶¶ 14-19. Thereafter, on February 18, 1997, Shapiro Plaintiffs allege that Schachner, both individually and as a registered representative of the defendant corporations, was personally served with the summons and complaint in this action. Based on a process server's sworn statement, process was served by Dennis Harbaugh, a licensed process server in the State of Florida. See Harbaugh Decl. ¶¶ 1, 5. Followinq several unsuccessful attempts, the process server finally affected service on Schachner at his home in Florida by handing him the papers in Shapiro and Windswept. See id. ¶ 5. Schachner denies that he was served with the complaint. According to the declaration, the process server previously had served Schachner with process in the WB Music case and had recognized him from this encounter when he return to serve theWindswept and Shapiro complaints. See id. ¶¶ 3-5. The defendants were required to answer or otherwise respond to the Shapiro complaint by March 14, 1997. None of the defendants ever responded to the complaint. On March 26, 1997, Schachner filed a bankruptcy petition, which automatically stayed all actions against him under 11 U.S.C. § 362(a). In the bankruptcy proceeding, Shapiro Plaintiffs made a motion for relief from the automatic stay to permit this case to proceed. By order dated August 17, 1997, the bankruptcy court granted that motion. On August 25, 1997, this Court issued the default judgment against Schachner, among others, because he failed to answer or otherwise respond to the Shapiro complaint. Like in the Windswept action, here, this Court struck Schachner's previous motion to vacate, filed on September 9, 1998, because it was not fully submitted. See Order, dated July 29, 1999, Case No. 97 Civ. 1014.
Schachner's instant motions seek relief from the default judgments inWindswept and Shapiro pursuant to Fed.R.Civ.P. 60(b)(1), (3) and (4).
B. Rule 60(b)(1) Relief
Schachner invokes Rule 60(b)(1), the subsection authorizing a court to vacate a default judgment on the ground of mistake. See Fed.R.Civ.P. 60(b)(1). Schachner charges that the district court clerk erred by entering the defaults in Windswept and Shapiro and that these errors constitute the mistake necessary to obtain relief pursuant to Rule 60(b)(1). Schachner articulates this theory of relief as follows: "The Defendants respectfully submit that there was an underlying mistake, not in the course of conduct or action by the Defendants, but rather by the Honorable Clerk of the Court who should never have proceeded to enter a Default, which formed the predicate or basis for the Default Judgment." Def.'s Windswept Mem. ¶ 5. This argument is a nonstarter. Rule 55 governs the entry of defaults and default judgments in federal court. See Fed.R.Civ.P. 55. Subsection (a) of that Rule directs the court clerk to enter a default against a defendant who "has failed to plead or otherwise defend as provided by these rules" when the failure to defend "is made to appear by affidavit or otherwise." Fed.R.Civ.P. 55(a). On August 25, 1997, in accordance with Rule 55(a), the court clerk entered the defaults of Schachner in the Windswept and Shapiro actions upon Plaintiffs' applications. Provided that the request for entry of default comports with the procedural requirements of Rule 55(a), the Rule's mandatory language vests no discretion in the district court clerk regarding whether a default can be entered. See Fed.R.Civ.P. 55(a) ("When a party against whom a judgment for affirmative relief is sought has failed to plead . . . and that fact is made to appear by affidavit . . ., the clerk shall enter the party's default." (emphasis added)); see also Sierra Foods, Inc. v. Haddon House Food Products, Inc., Civ. No. 90-6841, 1991 WL 95287, at *7 (E.D. Pa. May 29, 1991). Therefore, absent a clerical error, as in Windswept and Shapiro, the court clerk's performance of its ministerial duty under Rule 55(a) does not provide a basis for relief from judgment pursuant to Rule 60(b)(1). Consequently, Schachner has failed to show any "excusable neglect, mistake, inadvertence or surprise" under Rule 60(b)(1) with respect to theWindswept and Shapiro default judgments.
C. Relief From Default Because of Lack of Service
Schachner argues that because he allegedly never received service of the Windswept and Shapiro complaints, the Court should vacate the default judgments under Rule 60(b) After liberally interpreting Schachner's papers, the Court will consider: whether he might be entitled to relief on this ground under Rule 60(b)(3) or Rule 60(b)(4).
(1) Void Judgment Under Rule 60(b)(4)
Rule 60(b)(4) authorizes relief from a default judgment when the judgment is void, that is, when the court rendering the judgment lacked subject matter jurisdiction over the action, personal jurisdiction over the defendant, or rendered the judgment in a manner that is inconsistent with due process. See Jaffe Asher v. Van Brunt, 158 F.R.D. 278, 279 (S.D.N.Y. 1994). Unlike with motions based upon other subsections of Rule 60(b), the court has no discretion with respect to motions to vacate void judgments under Rule 60(b)(4), so that, if void, the court must vacate the judgment. See Tuff-N-Rumble Management, Inc. v. Sugarhill Music Pub. Inc., 99 F. Supp.2d 450, 455 (S.D.N Y 2000). Service of process in a federal action is governed by Fed.R.Civ.P. 4. Subsection 4(e)(2) of that Rule provides, in relevant part, that a party may serve an individual in any judicial district of the United States "by delivering a copy of the summons and of the complaint to the individual personally." Fed. P. Civ. P. 4(e)(2)
Liberally construed, Schachner argues that the default judgments entered against him in Windswept and Shapiro are void pursuant to Rule 60(b)(4) because he was not properly served with process in these actions, and therefore, the Court lacked personal jurisdiction over him when it issued the judgments.
If Schachner succeeds in establishing that the Court lacked personal jurisdiction because of improper service, this Court must vacate those judgments as void under Rule 60(b)(4) See Domond v. Great Am. Recreation, Inc., 116 F. Supp.2d 368, 375 (S.D.N.Y. 2000). Because Schachner bears the burden of establishing the basis for vacating the default judgments, he must show that Plaintiffs failed to serve him with process in these cases. See China Mariners' Assurance Corp. v. M.T. W.M. Vacy Ash, No. 96 Civ. 9553, 1999 WL 126921, at *3 (S.D.N.Y. Mar. 9, 1999). Schachner fails to allege any facts to support such a finding, he just offers bare allegations that he never received either of the complaints. In contrast, Plaintiffs have submitted the sworn declaration of the process server who allegedly served Schachner, which provides a detailed statement regarding how he affected service. This declaration provides prima facie proof of valid service. See National Credit Union Administration Board v. Abramov, No. 93 CV 1467, 1996 WL 480791, at *2 (E.D.N.Y. Aug. 15, 1996). According to the process server's account, he served process in both Windswept and Shapiro by simultaneously handing both sets of documents to Schachner, along with other documents. The Court credits the process server's version because, for instance: (1) this same process server personally served Schachner with the WB Music complaint less than one month before, a complaint that Schachner does not dispute receiving; (2) Schachner admittedly received documents inWindswept and Shapiro relating to discovery demands that the process server swears he served along with the summons and complaints in those cases; (3) the individual served by the process server responded in the affirmative when addressed as Mr. Schachner; (4) this same individual answered the door at the Schachner home; and (5) the declaration contains a detailed description of the residence, which Schachner does not attempt to rebut. See Harbaugh Decl. ¶¶ 1-6. Because Schachner offers nothing whatsoever to rebut the process server's version of events and given the level of detail in the sworn declaration, the Court finds that Plaintiffs properly served process in Windswept and Shapiro. Accordingly, the default judgments are not void under Rule 60(b)(4).
(2) Misrepresentation Under Rule 60(b)(3)
Schachner relies on Rule 60(b)(3), arguing that the Court should grant him relief from the Windswept and Shapiro default judgments because to obtain these judgments, Plaintiffs' counsel made misrepresentations within the meaning of Rule 60(b)(3) by claiming that Schachner had been served with process. Given that this Court found proper service of process in both cases, Schachner's argument fails, and therefore, he cannot obtain relief under Rule 60(b)(3). Schachner also cannot obtain relief under Rule (b)(3) based on the added argument in his reply papers; specifically, that: Plaintiffs' counsel made misrepresentations to obtain the default judgments against Schachner personally because counsel knew, based on an alleged agreement during an August 12, 1997 conference call with the Court, Plaintiffs' lawyer and Schachner, that only the defendant corporations were to be defaulted. The Court rejects this argument because Schachner does not substantiate his claim, nor could he.
D. Relief From Default Due to Lack of Notice
Schachner again argues that the default judgments entered against him are void under Rule 60(b)(4) because he never received notice of the applications for entry of defaults in the Windswept and Shapiro actions as required by Rule 55(b)(2). As discussed above, a defendant must receive notice of the application for entry of a default only if he has appeared in the case. For Rule 55 purposes, an appearance typically requires some presentation or submission to the court, though the court, in its discretion, could find that a defendant has appeared in an action where he otherwise had indicated to the plaintiff a clear intent to defend.See RLS Assocs. v. United Bank of Kuwait PLC, No. 01 Civ. 1290, 2002 WL 122927, at *4 (S.D.N.Y. Jan. 29, 2002) In his submissions in bothWindswept and Shapiro, Schachner contends that he fulfills the appearance requirement because he sent a letter to Plaintiffs' counsel prior to the default applications. Schachner provides no other information regarding this alleged communication. Nevertheless, Plaintiffs confirm that in May 1997 they received a letter from Schachner requesting a copy of theShapiro complaint. Even though this letter does not mention theWindswept case, the same counsel represents both sets of plaintiffs. What is more, one could conclude that Schachner requested a copy of theShapiro complaint for purposes of defending against the action — that is, if it were not for the fact that at the time Schachner sent the letter his March 26, 1997 bankruptcy filing stayed all actions against him. The Court finds that this letter does not constitute an appearance in either Windswept or Shapiro because it lacks a sufficient indication of an intent to defend.
Even assuming arguendo that Schachner made an appearance in these cases by virtue of this communication, the lack off notice regarding the defaults does not lead to vacatur of the judgments because Schachner fails to provide a meritorious defense in either case. Schachner offers the same defense in all three cases: "The Defendants further possess a meritorious defense in that they had previously sought and obtained approximately 89 licenses, and in no way engaged in intentional or willful violation of copyright law and the Defendants, if given the opportunity can prove that at all times they acted in good faith and in fact either paid or were in the process of paying royalties for the titles sued upon." Shapiro Mem. ¶ 10; Windswept Mem. ¶ 10; WB Music Mem. ¶ 11. As discussed earlier, Schachner does not provide the level of specificity needed to establish a meritorious defense in this context, and therefore does not satisfy the equitable standard necessary to obtain relief from the judgments.
Consequently, Schachner's motions to set aside the default judgments in Windswept and Shapiro are denied.
The Court again rejects Schachner's arguments that the default judgments should be vacated because the Windswept and Shapiro plaintiffs neglected to respond to his Verified Motions because, like in WB Music, Schachner misconstrues the events surrounding his initial quests for relief in these cases as well.
Conclusion
For the reasons set forth above, the Court denies in their entirety each of Schachner's pro se motions to vacate default judgments entered against him in the above-captioned cases.SO ORDERED.