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Heritage Home for Funerals, Inc. v. Heritage Cremation Provider, LLC

United States District Court, D. South Dakota, Southern Division

April 22, 2019

HERITAGE HOME FOR FUNERALS, INC., Plaintiff,
v.
HERITAGE CREMATION PROVIDER, LLC, Defendant.

          ORDER DENYING MOTION TO SET ASIDE DEFAULT JUDGMENT

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, Heritage Home for Funerals, Inc., brought this action against defendant, Heritage Cremation Provider, LLC. Docket 1. After the Clerk's entry of default (Docket 14), plaintiff moved for default judgment. Docket 15. The court granted the motion and entered a default judgment in favor of plaintiff. Docket 17. Now plaintiff moves for an order of contempt and to enforce the default judgment. Docket 20. Defendant opposes plaintiff's motion and moves to set aside the default judgment. Dockets 36, 39. For the reasons stated below, the court denies defendant's motion to set aside the default judgment.

         BACKGROUND

         On June 30, 2017, plaintiff, Heritage Home for Funerals, Inc., a South Dakota corporation, brought this action against defendant, Heritage Cremation Provider, LLC, a Colorado limited liability company, alleging trademark infringement, trademark dilution, false designation of origin, and unfair competition. Docket 1. After plaintiff was unable to personally serve defendant with the summons and complaint, plaintiff moved for service by publication. Dockets 8, 9. The court granted the motion. Docket 10. Plaintiff filed an affidavit of publication that stated the notice was published four times in The Colorado Springs Gazette. Docket 11. Defendant did not file an answer or defend itself. Plaintiff moved for entry of default. Docket 12. The Clerk of Courts entered default on September 11, 2017. Docket 14. On September 15, 2017, plaintiff moved for default judgment. Docket 15. The court entered default judgment in favor of plaintiff on February 20, 2018. Docket 17.

         On October 25, 2018, plaintiff filed a motion for an order of contempt and to enforce the default judgment. Docket 20. The court scheduled a hearing for March 4, 2019, and ordered defendant to show cause. Docket 24. At the show cause hearing, plaintiff was represented by counsel. Docket 29. Anthony J. Damiano was present and stated he was there on behalf of defendant. Id. The court informed Anthony that he could not represent defendant because he was not an attorney. Id. Anthony requested a continuance of the hearing, which plaintiff opposed. Id. The court ordered defendant to have an attorney make a notice of appearance within one week of the hearing. Id.

         On March 6, 2018, an attorney filed a notice of appearance for defendant. Docket 30. The court granted defendant's motion to continue the show cause hearing and set it for April 11, 2019. Docket 35. On March 18, 2019, defendant filed an opposition brief to plaintiff's motion for an order of contempt and to enforce the default judgment. Docket 36. Additionally, defendant filed a motion to set aside the default judgment. Docket 39. Plaintiff opposes defendant's motion. Docket 46. The court held the show cause hearing on April 12, 2019. Docket 48.

         DISCUSSION

         Federal Rule of Civil Procedure 55(c) allows a court to set aside a final default judgment under Rule 60(b). Rule 60(b) provides six grounds for relief from a final judgment:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial . . .;
(3) fraud . . ., misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Defendant argues that the default judgment should be set aside based on subsections 1, 4, and 6 of Rule 60(b).

         I. Rule 60(b)(4)

         Defendant argues that the default judgment must be set aside under Rule 60(b)(4) because the judgment is void. Docket 40 at 6. Defendant contends that the judgment is void because defendant was never served with a summons and complaint. Id. Defendant alleges that service failed because it was never personally served and plaintiff's service by publication was inadequate to put defendant on notice. Id. at 6, 7.

         Federal Rule of Civil Procedure 60(b)(4) requires a court to set aside a default judgment if the judgment is void. “A judgment is void if the rendering court lacked jurisdiction or acted in a manner inconsistent with due process.” Baldwin v. Credit Based Asset Servicing & Securitization, 516 F.3d 734, 737 (8th Cir. 2008). Though some relief under Rule 60(b) is discretionary, “relief from a judgment that is void under Rule 60(b)(4) is not discretionary.” United States v. Three Hundred Fifty-Three Thousand Six Hundred Dollars, in United States Currency, 463 F.3d 812, 813 (8th Cir. 2006).

         A. Service of Process

         “Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.” Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Federal Rule of Civil Procedure 4(h) prescribes the way defendant may be served because defendant is a limited liability company organized under Colorado law. Docket 9 ¶ 3; Docket 9-1. An unincorporated association may be served by delivering a copy of the summons and the complaint to an officer, managing or general agent, or an agent authorized by law or appointment to receive service of process. Fed.R.Civ.P. 4(h)(1)(B).

         Here, plaintiff attempted to serve defendant using this method, however, plaintiff was unable to personally serve defendant. Docket 9 ¶ 2. Plaintiff's counsel was able to find defendant's principal office and registered agent's information on the Colorado Secretary of State's website. Docket 9-1; Docket 9 ¶ 4. The address listed for both the principal office and the registered agent, Joseph Damiano, was 1755 Telstar Drive, Colorado Springs, Colorado, 80920. Docket 9-1. Plaintiff attempted to serve defendant through its registered agent at the sole address defendant designated for receiving service on its behalf, but the process server was unable to locate and serve defendant. Docket 9 ¶ 5; Docket 9-2. The process server stated that the address provided was a ...


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