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Great Southern Company Great Entertainment Merchandise, Incorporated v. Lance Davis Too Much Fun, Incorporated D/B/A Mayhem
Citations: 57 F.3d 1077; 1995 U.S. App. LEXIS 22068; 1995 WL 349859Docket: 94-55693
Court: Court of Appeals for the Ninth Circuit; June 9, 1995; Federal Appellate Court
Defendants Lance Davis and Too Much Fun, Inc. appeal the district court's denial of their motion to set aside a default judgment for copyright infringement entered against them by plaintiffs The Great Southern Company and Great Entertainment Merchandise, Inc. Davis argues that the default should be vacated due to surprise or excusable neglect (Rule 60(b)(1)) or misrepresentation (Rule 60(b)(3)). The court has jurisdiction under 28 U.S.C. § 1291 and affirms the district court's decision. The Ninth Circuit reviews Rule 60(b) motions for an abuse of discretion. A court may deny such motions if: (1) the plaintiff would be prejudiced, (2) the defendant lacks a meritorious defense, or (3) the defendant's conduct caused the default. The presence of any one factor is sufficient for denial. Davis received actual notice of the action and failed to respond, which the court found sufficient grounds for denial. His claims of ignorance about the consequences of his inaction were deemed implausible, and negligence by his attorney did not excuse the failure under Rule 60(b)(1). The court ruled that the district court did not abuse its discretion in denying relief based on excusable neglect. Davis's claims of surprise or misrepresentation were not formally raised in the district court, thus the appellate court did not address them. However, the court noted that any reliance on alleged representations by Thomas Cyrana about dropping the suit was unreasonable following a prior notification from Great Southern about potential default. Additionally, Great Southern sought attorneys' fees and costs on appeal, citing California Civil Code § 3344 and the Lanham Act, which Davis did not contest regarding the initial award of fees. The district court’s default judgment established that Davis and Too Much Fun, Inc. are jointly and severally liable for violations of the California Civil Code, leading to the dismissal of Great Southern's request for attorneys' fees under the Lanham Act. Great Southern sought sanctions against Davis for pursuing a frivolous appeal, which is permissible under 28 U.S.C. § 1912 and Fed. R. App. P. 38 when an appeal is deemed obviously without merit. The court found Davis' arguments meritless, entitling Great Southern to reasonable attorneys' fees and double costs, with both Davis and his counsel liable for these costs. Great Southern is required to submit affidavits of fees within fourteen days, followed by a response from Davis within seven days. The court also raised concerns regarding the conduct of Davis' attorney, Gilbert Azafrani, noting significant deficiencies in his opening brief, including a lack of authoritative citations, failure to comply with procedural rules, and reliance on out-of-circuit cases. Consequently, Azafrani was sanctioned $500, separate from Davis, to be paid within thirty days of the mandate issuance. The district court's denial of Davis' motion for relief from the default judgment was affirmed, and due to the frivolous nature of the appeal, further sanctions were imposed. The case was found suitable for decision without oral argument, and the disposition is not to be published or cited, except as allowed under Ninth Circuit Rule 36-3. Assertions made by Davis' counsel in the reply brief were identified as baseless, indicating a lack of competence and failing to provide justifiable grounds for surprise.