Slep-Tone Entertainment Corporation v. Hot Shot Enterprises, LLC

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1613

SLEP-TONE ENTERTAINMENT CORPORATION; SOUND CHOICE STUDIOS,
INCORPORATED,

Plaintiffs - Appellants,

v.

HOT SHOT ENTERPRISES, LLC, d/b/a Hot Shot Mobile DJ,

Defendant – Appellee,

and

ASSOCIATED CONSULTANTS, a Virginia general partnership
composed of Glenn Lorenz, James Brandon, and John Doe No. 1
(identity unknown); GLENN LORENZ; JAMES BRANDON; JOHN DOE
#1, (identity unknown); HORIZON MUSICFEST, LLC; KIRK RUBLEY,
d/b/a Kirkabee Deejays; DAVID SNEDDON, d/b/a Super Dave’s
Karaoke; ELWOOD JUNKINS, d/b/a Starlight Entertainment;
NELSON COFFMAN, d/b/a Nelson’s Karaoke; METRO ENTERTAINMENT,
LLC; RON WATKIN, d/b/a Karaoke Express; TERRY LEE RYAN;
JASON B. INGRAM, d/b/a Mobile Disc Jockeys; NICK PARAVATI,
d/b/a Nick’s Karaoke; SJ’S LAKESIDE TAVERN; NICHOLAS FISHER,
d/b/a Karaoke One; L&W ENTERTAINMENT, a Virginia general
partnership composed of Linda Lackey and Walter Lackey;
LINDA LACKEY; WALTER LACKEY; BLUE NOTE ENTERTAINMENT &
PRODUCTIONS, LLC; EPIPHANY ENTERTAINMENT, a Virginia general
partnership composed of Thomas J. Grosvenor and Sarah B.
Grosvenor; THOMAS J. GROSVENOR; SARAH B. GROSVENOR; SHANER
SOUND SERVICES, a Virginia general partnership composed of
Ken Shaner, Drew Shaner and Neal Shaner; KEN SHANER; DREW
SHANER; NEAL SHANER; JASON E. CALL, d/b/a KJ Productions;
TWO GUYS PRODUCTIONS, a Virginia general partnership
composed of Clint Novak and Bob Kidd; CLINT NOVAK; BOB KIDD;
NIGEL BANDERAS, d/b/a Virginia Idol Entertainment; NARD’S
PROFESSIONAL DJ SERVICE; JIMMY O’NEAL, d/b/a Good Tymes
Karaoke & DJ Services; RICHARD NUNNALLY, d/b/a King Richard
Karaoke; GARY BRIGGS, SR., d/b/a Gary’s Karaoke & DJ
Service; GARY BRIGGS, JR., d/b/a Gary’s Karaoke & DJ
Service; JANET LEIMBERGER, d/b/a Gowitit Karaoke/DJ; PARKER
MEADOWS, d/b/a Camelot Entertainment; JEFFREY SMITH, d/b/a
Smitty’s Karaoke; TONY KOHLHEPP, d/b/a Symphonic Karaoke &
DJ Service; FAGAN’S RESTORATIONS, INCORPORATED, d/b/a
Irelands Four Courts; RB PUB, INCORPORATED, d/b/a Finnegan’s
Bar and Grill; MOE’S PEYTON PLACE; TEIXEIRA, INCORPORATED,
d/b/a The Clubhouse Restaurant and Sports Bar; THE ASHBURN
PUB; K2 RESTAURANT AND LOUNGE, a/k/a Kilroys II; 1319 KING
STREET, INCORPORATED, d/b/a Rock It Grill; SNSA,
INCORPORATED, d/b/a Fast Eddie’s Sports and Billards;
PARADISO, INCORPORATED, d/b/a Paradiso Ristorante Italiano;
CHAD PAINTER, d/b/a Wonderland; REJ ENTERPRISES,
INCORPORATED, d/b/a Murphy’s Law Billiards & Sports Pub;
BUBBA’S RESTAURANT, INCORPORATED; THE WRANGLER SPORTS BAR &
GRILL, LLC; ANDRADE’S INTERNATIONAL RESTAURANT, LLC; OSB &
G, LLC, d/b/a Overtime Sports Bar & Grill; NANKING CHINESE
RESTAURANT; NACHO MAMA’S, INCORPORATED; FRENCH BISTRO 104,
LLC, d/b/a Bistro 104; CFC OF CHARLESTON, INCORPORATED,
d/b/a Sine Irish Pub & Restaurant; KING PIN LANES,
INCORPORATED; HOOAH’S SPORTS GRILL; PATRICK’S RESTAURANT;
BETLIN RESTAURANTS, LLC, d/b/a The Stratford Grill; MARS
BAR; STEEL HORSE BAR & GRILLE; J & D’S CAFE; HOSPITALITY OF
RICHMOND, LLC, d/b/a Cha Cha’s Cantina; ANDREW BLANTON,
d/b/a Bethany Entertainment; MICHAEL COWLES, d/b/a Capitol
Party Authority; DAVID TAYLOR,

Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:09-cv-01390-CMH-JFA)

Submitted: December 29, 2011 Decided: January 23, 2012

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

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James M. Harrington, HARRINGTON LAW, P.C., Concord, North
Carolina, for Appellants.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

The Appellants appeal the district court’s order

adopting the magistrate judge’s report and recommendation and

entering an order of default judgment in their favor. The

Appellants claim that the damage award is too small and the

injunction and destruction orders are too vague. Because the

district court applied an incorrect standard of review, we

vacate and remand for further proceedings.

Because the magistrate judge was operating without the

parties’ consent on the resolution of a dispositive matter, the

district court was bound to make a de novo determination of

those portions of the report to which objection was made. 28

U.S.C.A. § 636(b)(1) (West 2006 & Supp. 2011); Fed. R. Civ. P.

72(b)(3). Here, the Appellants filed specific objections to the

magistrate judge’s report and sought a hearing to submit further

evidence in support of a higher damage award. The district

court overruled the objections and denied a hearing without

explanation, stating that “[b]ased on a de novo review of the

evidence in this case and consideration of the objections filed,

the Court finds that the Magistrate Judge’s Proposed Findings of

Fact and Recommendations are neither clearly erroneous nor

contrary to law.” Taking the district court’s statement at face

value, it reviewed the magistrate judge’s findings and

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recommendations for clear error—not under the appropriate de

novo standard. We are further concerned by the district court’s

conclusory denial of the Appellants’ request for an evidentiary

hearing. While a district court possesses broad discretion to

deny an evidentiary hearing in its evaluation of a magistrate

judge’s findings and recommendations, the decision cannot be

arbitrary or capricious. Here, because the basis for the

district court’s rejection of the request for a hearing is not

apparent from the record, we find ourselves unable to

effectively review the court’s decision. On remand, then, the

district court should either grant the hearing or set forth its

rationale for denial.

Accordingly, we vacate the district court’s order and

remand. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional

process.

VACATED AND REMANDED


By this disposition, we express no opinion on the merits
of the Appellants’ objections to the magistrate judge’s report
and recommendation.

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