Opinion
18-24684-CIV-MARTINEZ/AOR
01-27-2021
STREAMINN HUB INC., FM RECORDS MUSIC INC., FM RECORDS MUSIC LLC, and KEMAR MCGREGOR, Plaintiffs/Counter-Defendants, v. RICARDO M. GAYLE, FRANCINE A. GAYLE, and LONG CHAIN GLOBAL MUSIC LLC, Defendants/Counter-Plaintiffs.
REPORT AND RECOMMENDATION
ALICIA M. OTAZO-REYES, UNITED STATES MAGISTRATE JUDGE
THIS CAUSE came before the Court upon Counter-Plaintiffs Ricardo M. Gayle, Francine A. Gayle (“F.A. Gayle”), and Long Chain Global Music LLC's (collectively, “Counter-Plaintiffs” or “Long Chain”) Motion for Default Judgment [D.E. 129] against Counter-Defendants Streaminn Hub Inc. (“SHI”), FM Records Music Inc. (“FMRMI”), FM Records Music LLC. (“FMRML”), and Kemar McGregor (“McGregor”) (collectively, “Counter-Defendants”). This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 by the Honorable Jose E. Martinez, United States District Judge [D.E. 130]. The undersigned held an evidentiary hearing on this matter, conducted by Zoom video conference, on January 13, 2021 (hereafter, “Evidentiary Hearing”) [D.E.135]. For the reasons stated below, the undersigned respectfully recommends that the Motion for Default Judgment be GRANTED.
Long Chain initiated its counterclaim for damages and injunctive and declaratory relief against Counter-Defendants on December 31, 2018. See Long Chain's Answer, Affirmative Defenses, and Counterclaims in Response to Counter-Defendants' First Amended Complaint (hereafter, “Counterclaim”) [D.E. 18 at 9-27]. Long Chain asserted the following claims against some or all Counter-Defendants in its Counterclaim:
• Count I - Fraud on the Court, against Counter-Defendants;
• Count II - Copyright Infringement, against Counter-Defendants;
• Count III - Fraudulent Misrepresentation and Inducement, against CounterDefendants;
• Count IV - Negligent Misrepresentation and Inducement, against CounterDefendants;
• Count V - Declaratory Judgment of Copyright Interest, against CounterDefendants;
• Count VI - Unjust Enrichment, against Counter-Defendants;
• Count VII - Breach of Contract, against SHI, FMRMI, and FMRML;
• Count VIII - Equitable Accounting, against SHI, FMRMI, and FMRML;
• Count IX - Tortious Interference with Business Relationships, against CounterDefendants; and
• Count X - Breach of Implied Covenant of Good Faith and Fair Dealing, against SHI, FMRMI, and FMRML.Id.
On June 2, 2020, a Clerk's Default was entered against Counter-Defendants. See Clerk's Default [D.E. 107].
On July 16, 2020, the Court issued its Order on Default Final Judgment Procedure [D.E. 126] instructing Long Chain to: file a Motion for Default Judgment that includes affidavits of the amount due by Counter-Defendants, if necessary, and any other supporting documentation necessary to determine the measure of damages and/or conclude this action; send a copy of the motion to Counter-Defendants' counsel or to Counter-Defendants if they do not have counsel; and indicate that notice was sent and the address to where it was sent in the certificate of service. Id.
On July 29, 2020, Long Chain filed the Motion for Default Judgment as to Counts I-V and IX of its Counterclaim. See Motion for Default Judgment [D.E. 129]. Therein, Long Chain: submitted documentation in support of its request for injunctive and declaratory relief, statutory damages, compensatory damages, punitive damages, costs and reasonable attorneys' fees, and post judgment interest on those awards pursuant to 28 U.S.C. § 1961; and indicated in its Certificate of Service and Service List that the Motion for Default Judgment was sent to Counter-Defendants via U.S. First Class Mail and the address to where it was sent. Id. at 3.
On November 3, 2020, the undersigned issued an Order to Show Cause instructing Counter-Defendants to show cause why the Motion for Default Judgment should not be granted or, alternatively, to file a response in opposition to the Motion for Default Judgment within 20 days. See Order to Show Cause [D.E. 131]. Counter-Defendants failed to comply.
On December 14, 2020, the undersigned set an evidentiary hearing on the Motion for Default Judgment, to be conducted via Zoom video conference, for January 13, 2021 at 11:30 a.m. See Order Setting Evidentiary Hearing [D.E. 132]. The Order Setting Evidentiary Hearing and instructions for the Zoom video conference were mailed to Counter-Defendants. Id.
On January 6, 2020, the undersigned reset the evidentiary hearing on the Motion for Default Judgment to January 13, 2021 at 10:30 a.m. See Order Resetting Evidentiary Hearing (Time Change Only) [D.E. 133]. The Order Resetting Evidentiary Hearing (Time Change Only) and instructions for the Zoom video conference were mailed to Counter-Defendants. Id.
At the Evidentiary Hearing, F.A. Gayle provided competent and credible testimony in support of Long Chain's claims and documentary evidence was submitted in support of Long Chain's requested relief. See Exhibit and Witness List [D.E. 136]. Counter-Defendants, however, did not appear.
RECOMMENDATION
Having received the testimony of F.A. Gayle, considered the evidence submitted at the Evidentiary Hearing, and being otherwise fully advised in the premises, the undersigned RESPECTFULLY RECOMMENDS that the Motion for Default Judgment [D.E. 129] be GRANTED and that:
• Counter-Defendants be permanently enjoined and restrained from selling, marketing, distributing, infringing, or using - in any form - any of CounterPlaintiffs' works.
• The Court declare that Counter-Defendants have no claim of ownership in any of Counter-Plaintiffs' works.
• Counter-Plaintiffs shall recover $763, 626.36 in damages from Counter-Defendants, for which they will be jointly and severally liable, comprised of the following:
• $300, 000.00 in statutory damages;
• $99, 568.59 in compensatory damages;
• $298, 705.77 in punitive damages; and
• $65, 352.00 in reasonable costs and attorneys' fees.
• This monetary award bear interest in accordance with 29 U.S.C. § 1961 from the date of entry of the Final Default Judgment until payment.
• The Court enter the proposed Final Default Judgment attached hereto as Exhibit “A.”
Pursuant to Local Magistrate Judge Rule 4(b), the parties have fourteen days from the date of this Report and Recommendation to file written objections, if any, with the Honorable Jose E. Martinez. Failure to timely file objections shall bar the parties from attacking on appeal the factual findings contained herein. See Resolution Tr. Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993). Further, “failure to object in accordance with the provisions of [28 U.S.C.] § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions.” See 11th Cir. R. 3-1 (I.O.P. - 3).
RESPECTFULLY SUBMITTED.
EXHIBIT A
FINAL DEFAULT JUDGMENT
FINAL DEFAULT JUDGMENT is hereby ENTERED in favor of Counter-Plaintiffs Ricardo M. Gayle, Francine A. Gayle, and Long Chain Global Music LLC (collectively, “CounterPlaintiffs”) and against Counter-Defendants Streaminn Hub Inc., FM Records Music Inc., FM Records Music LLC., and Kemar McGregor (collectively, “Counter-Defendants”), as follows:
• Counter-Defendants shall be permanently enjoined and restrained from selling, marketing, distributing, infringing, or using - in any form - any of CounterPlaintiffs' works.
• It is declared that Counter-Defendants have no claim of ownership in any of Counter-Plaintiffs' works.
• Counter-Plaintiffs shall recover $763, 626.36 in damages from Counter-Defendants, for which they will be jointly and severally liable, comprised of the following:
• $300, 000.00 in statutory damages, for which sum let execution issue;
• $99, 568.59 in compensatory damages, for which sum let execution issue;
• $298, 705.77 in punitive damages, for which sum let execution issue; and o $65, 352.00 in reasonable costs and attorneys' fees, for which sum let execution issue.
• This monetary award shall bear interest in accordance with 29 U.S.C. § 1961 from the date of entry of this Final Default Judgment until payment.
DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of _____________, 2021
JOSE E. MARTINEZ, UNITED STATES DISTRICT JUDGE