Unpublished Disposition, 888 F.2d 130 (9th Cir. 1988)

MEMORANDUM^*

SUMMARY

Magic Garden Restaurant & Lounge ("Magic Garden") and Carmelita Swearingen appeal summary judgment in favor of appellees, all members of the American Society of Composers, Authors & Publishers ("ASCAP"). We affirm.

FACTS

Magic Garden maintains a jukebox that furnishes music for the club's dancers. Magic Garden has never been licensed to perform ASCAP members' music at their establishment.

Appellees brought an action for copyright infringement under Title 17 U.S.C. On February 1, 1988, Judge Panner granted summary judgment in favor of appellees and awarded appellees damages of $3,000.00 plus their costs and reasonable attorneys' fees; and he enjoined appellants from further infringement. Due to a clerical error, the judgment was not entered until September 13, 1988. On September 26, 1988, appellant filed a motion for relief from judgment. The motion was denied on November 17, 1988.

ANALYSIS

Appellants have conceded that the grant of summary judgment was proper. Appellants contend that the issue on appeal is whether the district court correctly denied their motion for relief from judgment. Treating appellants' motion as one to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, we review the district court's decision for an abuse of discretion. Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir. 1985). We review motions for relief from judgment or to amend the judgment made pursuant to Rule 60(b) of the Federal Rules of Civil Procedure for an abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829 (9th Cir.), cert. denied, 479 U.S. 829 (1986). Likewise, we review a motion to reopen or to supplement the record for an abuse of discretion. Ellis v. Brotherhood of Railway, Airline, and Steamship Clerks, 685 F.2d 1065, 1071 (9th Cir. 1982), aff'd in part, rev'd in part on other grounds, 466 U.S. 435 (1985).

Appellants contend that "newly discovered evidence" warrants the granting of the Rule 59(e) motion. As we review the record, it appears that this "newly discovered" evidence was known to appellant before the motion for summary judgment was granted. Regardless, appellants have introduced no evidence to show why this evidence could not have been discovered earlier through due diligence. The district court acted within its discretion in denying this motion.

AFFIRMED.