Sid Avery and Associates, Inc. v. Parallel Bar Inc.
- Vernon Broderick
- 1:19-cv-07112
- U.S. District Court · Southern District of New York
- 3
In Sid Avery and Associates v. Parallel Bar, Judge Fox ordered proper service of damages submissions so defaulting defendants could contest damages.
The order required Sid Avery and Associates, Inc. to properly serve its damages and fee submissions. It gave Parallel Bar Inc., Hamid Rashidzada, and Greg Seider an opportunity to oppose the requested amounts with admissible evidence.
What happened
Sid Avery and Associates, Inc. v. Parallel Bar Inc. is a copyright case in which the defendants had already been found in default, and the court referred the case for a hearing on damages and attorneys’ fees. The plaintiff then requested statutory damages and fees and costs.
The plaintiff’s lawyer said the damages materials had been sent by email and certified mail, but one supporting declaration was not served on the defendants. The court said defaulting defendants generally must have a chance to contest the amount of damages.
Judge Kevin Nathaniel Fox ordered the plaintiff to personally serve the damages materials on the two individual defendants and serve Parallel Bar Inc. as required by New York law, then file proof of service. The defendants could file evidence opposing the damages request by September 25, 2020, and the plaintiff could reply by October 2, 2020.
The detailed version
- Sid Avery and Associates, Inc. v. Parallel Bar Inc. · No. 1:19-cv-07112
- Vernon Broderick
- Sept. 2, 2020
Background
Sid Avery and Associates, Inc., doing business as MPTV Images, sued Parallel Bar Inc., doing business as The Summit Bar, Hamid Rashidzada, and Greg Seider for copyright infringement. The plaintiff sought an injunction, damages or statutory damages, attorneys’ fees and costs, an accounting of profits and other benefits, and prejudgment interest.
The court had previously granted the plaintiff’s application for a default judgment against the defendants and referred the matter to Magistrate Judge Kevin Nathaniel Fox for an inquest, meaning a proceeding to determine damages and attorneys’ fees. The plaintiff then filed a motion for damages seeking $87,500 in statutory damages, or at least $30,000, plus $4,714.75 in fees and costs.
Service problem
The plaintiff’s counsel submitted certificates stating that the motion materials and a declaration by counsel had been sent to the defendants by email and certified mail. The plaintiff also submitted a declaration by Ron Avery with exhibits, but the opinion states that those materials were not served on the defaulting defendants.
The court explained that, after a default, damages generally must be established through an evidentiary proceeding in which the defendant has an opportunity to challenge the amount claimed. The court also cited the federal rules requiring proper service and proof of service. It noted that a corporation cannot appear in court without an attorney.
Order
The court ordered the plaintiff, by September 11, 2020, to serve all of its inquest submissions as follows:
- A process server had to personally hand the materials to Hamid Rashidzada and Greg Seider.
- Parallel Bar Inc. had to be served personally in the manner required by New York law for service on a corporation.
- The plaintiff had to file proof of service as required by the Federal Rules of Civil Procedure.
The court ordered the defaulting defendants to serve and file any opposition to the plaintiff’s inquest submissions by September 25, 2020, supported by admissible evidence. The plaintiff could file a reply by October 2, 2020. The opinion does not decide the amount of damages or attorneys’ fees.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.