United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM, UNITED STATES DISTRICT JUDGE
Garnier-Thiebaut, Inc. seeks a default judgment against
Defendant Castello 1935 Inc. (the "Corporate
Defendant"), one of two defendants in this case. ECF No. 35.
The Corporate Defendant did not answer the Complaint, and the
time for doing so has passed. See ECF No. 24.
Nevertheless, because Plaintiff retains the prospect of
holding the defendants jointly and severally liable on the
copyright infringement claim, the motion for default judgment
will be denied without prejudice.
brought this copyright infringement suit on December 7, 2017,
naming both the Corporate Defendant and its president,
Richard Campbell, as defendants. See Compl. 1, ECF
NO.1. Plaintiff later filed proof that it served both
defendants on December 14, 2017. See ECF No. 10.
January 26, 2018, Plaintiff filed an amended complaint. Am.
Compl., ECF No. 16. Counsel, representing both the Corporate
Defendant and Mr. Campbell, moved to dismiss Plaintiffs
amended pleading for a failure to state a claim. ECF No. 17.
While the motion was pending, the attorney representing both
defendants moved for leave to withdraw from the case
"due to the Defendants' actions that were contrary
to legal advice and due to the failure of Defendants to remit
payment for services rendered in accord with" the
representation agreement. ECF No. 20. On May 17, 2018, I
issued a memorandum opinion and order denying the motion to
dismiss and granting defense counsel's motion for
withdrawal. See Mem. Op. & Order, ECF No. 21.
The memorandum opinion ordered the defendants to answer the
Amended Complaint by June 7, 2018, and cautioned that the
Corporate Defendant "must retain counsel as this case
proceeds" in light of precedent establishing that
corporations, "as artificial entities, may not appear
pro se but must instead appear through counsel."
Id. at 13 (quoting McGowan v. Cross, Nos.
92-1480 & -1584, 1993 WL 125416, at *1 n.1 (4th Cir. Apr.
22, 1993) (per curiam) (unpublished table decision)); see
Loc. R. 101.2.b.
did not file a timely answer, and the Corporate Defendant did
not retain counsel. Consequently, on July 2, 2018, I issued a
show cause order requiring the Corporate Defendant to explain
why a default judgment should not be entered against it for
failing to have new counsel enter an appearance on its
behalf. ECF No. 22. Mr. Campbell's response to the order
said that the company had "been trying to secure a new
attorney to take over this case," but, to date, had
"been unable to find one." ECF No. 23. I later
ordered each defendant to answer the Amended Complaint by
August 23, 2018, specifying that Mr. Campbell may do so
without the assistance of counsel but that the Corporate
Defendant may not. ECF No. 24. The order further required
counsel for the Corporate Defendant to enter an appearance by
August 23, 2018. See id It concluded: "Failure
to file a timely answer and for corporate counsel to enter
his or her appearance may subject the defendant failing to do
so to a default judgment on the claims against him or
Campbell met the deadline to answer the Complaint.
See ECF No. 25. The Corporate Defendant, however,
did not, and it remains unrepresented. On March 28, 2019,
upon a motion filed by Plaintiff, the Clerk's Office
entered a default against the Corporate Defendant. ECF No.
38. Plaintiffs motion for a default judgment against the
Corporate Defendant (ECF No. 35) now is before me. Having
reviewed the filings, I find that a hearing is not necessary.
See Loc. R. 105.6.
question before me is whether it would be proper to issue a
default judgment against the Corporate Defendant while
identical claims remain pending against its president, Mr.
Frow v. De La Vega, the Supreme Court declared that,
in a case where joint liability is alleged, it would both
unlawful and "absurd" to issue a default judgment
against one defendant, individually, while the same claims
proceed against other, non-defaulting defendants. 82 U.S.
552, 554 (1872). This is so, the Court explained, because a
default judgment under those circumstances would run the risk
of producing inconsistent judgments. See Id.
Accordingly, it is generally accepted that "when an
action is brought against several defendants, charging them
with joint liability," judgment cannot be entered
against a defendant "until the matter has been
adjudicated with regard to all defendants, or all defendants
have defaulted." 10A Charles Alan Wright & Arthur R.
Miller, Fed. Prac. & Proc. Civ. § 2690 (3d ed.). The
Fourth Circuit has extended the Frow rule to cases
where the plaintiff alleges defendants are liable not
jointly, but jointly and severally. See United States ex
rel. Hudson v. Peerless Ins. Co., 374 F.2d 942, 944 (4th
Cir. 1967) (stating that the "procedure established for
multiple defendants by Rule 54(b) [pertaining to judgments]
is ... applicable not only to situations of joint liability
but to those where the liability is joint and/or
several"); Richardson v. Bostick, No.
11-CT-3045-FL, 2013 WL 3166398, at *3-*4 (E.D. N.C. June 20,
the terms "joint liability" or "joint and
several liability" do not appear in the Amended
Complain.. Nevertheless, this is a suit for copyright
infringement. And "[b]ecause infringement of copyright
is considered a tort, the general statement often is made
that all defendants concerned in the infringement are jointly
and severally liable" for damages. MCA, Inc. v.
Wilson, 677 F.2d 180, 186 (2d Cir. 1981); see
Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d
505, 517 (4th Cir. 2002); Broad. Music, Inc. v. Hobi,
Inc., No. 93-3505, 1994 WL 144812, at *1, *2 (5th Cir.
Apr. 8, 1994) (per curiam) ("The test of whether a
corporate officer is jointly and severally liable with the
corporation for copyright infringement is whether the officer
has the right and ability to supervise the infringing
activity and also has a direct financial interest in such
activities."); see also, e.g., Buttnugget Publ'g
v. Radio Lake Placid, Inc., 807 F.Supp.2d 100, 107-08
(N.D.N.Y. 2011) (determining that plaintiffs who brought a
copyright infringement suit against a company and its
president had adequately alleged "facts sufficient to
establish the alleged copyright infringements and that all
defendants may be held joint and severally liable");
Crabshaw Music v. K-Bob's of El Paso, Inc., 744
F.Supp. 763, 767 (W.D. Tex. 1990) ("Courts have
traditionally held the 'corporate officer will be liable
as a joint tortfeasor with the corporation in a copyright
infringement case where the officer was the dominant
influence in the corporation, and determined the policies
which resulted in the infringement.'" (quoting
Sailor Music v. Mai Kai of Concord, Inc., 640
F.Supp. 629 (D.N.H. 1986))). That principle would seem to be
in play here, where the Amended Complaint identifies Mr.
Campbell as an officer of the Corporate Defendant who
"was the dominant influence in" the company;
"had the sole and direct right and ability to supervise
and control [its] infringing activity"; and "ha[d]
a direct financial interest in the infringing activity."
Am. Compl. ¶ 6; see also Mot. for Default
Judgment 3, ECF No. 35 (noting that "evidence as to
damages would be identical" for the two defendants..
Amended Complaint repeatedly alleges that Mr. Campbell was
acting on behalf of the Corporate Defendant throughout the
relevant time period. See, e.g., Am. Compl. ¶
15(c) (alleging that the Corporate Defendant acted
"through Campbell"); id. ¶ 15(d)
(alleging that the company acted "at the direction of
Campbell".. On these facts, it is more than plausible
that the two defendants will have defenses in common. I find,
therefore, that a default judgment against the Corporate
Defendant would risk producing inconsistent judgments, a
result the Frow Court found intolerable.
Accordingly, until the matter has been adjudicated as to Mr.
Campbell, I consider it premature to rule on Plaintiffs
motion for default judgment. The motion will therefore be
denied without prejudice. Plaintiff may renew its motion
following adjudication of the claims against Mr. Campbell.
it is, this day, by the United States District Court for the
District of Maryland, hereby ORDERED that Plaintiff
Garnier-Thiebaut, Inc.'s Motion for ...