United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION TO SET ASIDE DEFAULT
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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
(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).
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.
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.
Service of Process
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.
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 ...