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SoundExchange v. LiveOne Order
SoundExchange v. LiveOne Order
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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CASE NO. 2:22-CV-04410-AB-AFM
11 SOUNDEXCHANGE, INC., a
Delaware corporation.
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Plaintiff,
13 ORDER DENYING DEFENDANTS’
v. EX PARTE APPLICATION
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15 LIVEONE, INC., a Delaware
corporation & SLACKER, INC., a
16 Delaware corporation.
17 Defendants.
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20 Before the Court is Defendants LiveOne, Inc. and Slacker, Inc.’s
21 (“Defendants”) ex parte application to either (1) set aside the default and default
22 judgment; or (2) shorten time to hear defendants’ motion to set aside default and
23 vacate the judgment and stay the consent order; and to convene a status and
24 mandatory settlement conference (Dkt. No. 30). Plaintiff SoundExchange, Inc.
25 (“Plaintiff”) filed an opposition on October 25, 2022, pursuant to the Court’s order
26 (Dkt. No. 32). For the foregoing reasons, Defendants’ application is DENIED.
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Case 2:22-cv-04410-AB-AFM Document 34 Filed 11/16/22 Page 2 of 7 Page ID #:318
1 1. BACKGROUND
2 Plaintiff sued Defendants to recover unpaid royalties. Plaintiff filed its
3 Complaint on June 28, 2022 and served Defendants on July 15, 2022. (See Dkt.
4 Nos. 17, 18.) The Parties entered a stipulation to allow Defendants to respond by
5 August 18, 2022. (Dkt. No. 19.) No response was filed. On August 23, 2022, the
6 Court issued an Order to Show Cause for lack of prosecution. (Dkt. No. 20.)
7 Plaintiff moved for Entry of Default on September 6, 2022, which discharged the
8 Order to Show Cause. (Dkt. Nos. 21, 23.) The Court entered default on September
9 8, 2022. (Dkt. No. 22.) That same day, Defendant filed a motion to extend the time
10 to file an answer, indicating Plaintiff did not oppose the motion. (Dkt. No. 24.)
11 However, because default had already been entered, the Court struck the motion and
12 recommended the parties to file a joint motion or stipulation to set aside the default.
13 A month later, on October 12, 2022, the Court received a stipulation signed
14 by both parties, that represented: “Plaintiff SoundExchange, Inc. (“Plaintiff” or
15 “SX”) and Defendants LiveXLive Media Inc. (“LiveXLive”) and Slacker, Inc.
16 (“Slacker,” and together with LiveXLive, “Defendants”) hereby stipulate and move
17 this Court for entry of a Consent Judgment.” (Dkt. No. 27 at 1) (emphasis added).
18 Based on the representation that parties jointly moved for entry of consent
19 judgment, the Court entered consent judgment. Defendants now claim that the
20 consent judgment is improper.
21 2. Ex Parte Relief
22 Ex parte applications are solely for extraordinary relief and are rarely granted.
23 Mission Power Eng’g Co. v. Cont’l Cas. Co., 883 F. Supp. 488, 489 (C.D. Cal.
24 1995). The noticed motion procedure employed in this Court is important. Id. at
25 491. It ensures that the parties, and the Court, have sufficient time to thoroughly
26 address the issues. Id. Serious fairness concerns arise when a party skips those
27 procedures and forces an opposing party to prepare an opposition to substantive
28 legal issues in a single day. Id. at 490.
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Case 2:22-cv-04410-AB-AFM Document 34 Filed 11/16/22 Page 3 of 7 Page ID #:319
1 Judgment violates Rule 54, (b) the request for entry of judgment was inadequate,
2 and (c) the Court should have conducted a hearing under Rule 55(b)(2).
3 a. Rule 54
4 Defendants argue that the Consent Judgment violates Fed. R. Civ. P. 54(b),
5 because it does not dispose of all causes of action in the Complaint, and does not
6 “expressly determine[] that there is no just reason for delay” for resolving only one
7 cause of action. (Appl. 19-20.) Defendants are incorrect. The Complaint seeks
8 compensatory damages based on three causes of action: (1) Underpayment of
9 Statutory Royalties in violation of 37 C.F.R. § 380.2, 37 C.F.R. § 380.3, 37 C.F.R. §
10 380.10, and 17 U.S.C. § 114(f)(3)(B); (2) Non-Payment of Statutory Royalties in
11 violation of 37 C.F.R. § 380.6; and (3) Breach of Contract under the Royalty
12 Payment Plan Agreement. (See generally Compl.) As Plaintiff points out, the
13 Consent Judgment disposes of all causes of actions, as the damages “represents the
14 amount of statutory license and/or other royalties Defendants failed to make
15 following the parties’ Royalty Payment Plan Agreement” and are intended to “cure”
16 Defendant’s non-payment of “statutory license payments since approximately
17 2017.” (Consent Judgment at 2.) A final judgment is one that “disposes of a
18 complete claim for relief or all the claims of a party.” In re Frontier Properties,
19 Inc., 979 F.2d 1358, 1362 (9th Cir. 1992). Because there is no additional relief that
20 could be afforded based on the Complaint’s allegations, the Consent Judgment
21 disposes of all causes of action.
22 b. Rule 60
23 Defendants further argue that Consent Judgment based on the stipulation was
24 improper. Because Defendants are seeking relief from the judgment entered, the
25 Court considers this motion under Fed. R. Civ. P. 60(b), which permits relief from
26 final judgments, orders, or proceedings. Defendants cite to Rule 60(b)(1) as support
27 for its argument that the Court should vacate default and default judgment.
28 However, because the judgment at issue is a consent judgment, the Court finds
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