                           UNPUBLISHED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.




                                3
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


                                               4
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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