United States District Court, D. Oregon
VINCENT L. WEBB, a resident of the State of Nevada, Plaintiffs,
TRAILER CITY, INC., an Oregon corporation; DAN E. WALKER, a resident of Oregon; and CHANGZHOU NANXIASHU TOOL CO., LTD., a foreign corporation, Defendants.
STEPHEN J. JONCUS, Joncus Law LLC P.O. Attorney for Plaintiff
KRISTEN G. HILTON Sussman Shank, LLP, PAUL S. MARKS, Neufeld
Marks, PC, Attorneys for Defendant Changzhou Nanxiashu Tool
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE.
matter comes before the Court on Defendant Changzhou
Nanziahsu Tool Co.'s Motion (#45) to Vacate Default,
Default Judgment and Supplemental Judgment and for Dismissal
Based on Lack of Jurisdiction.
reasons that follow, the Court DENIES
20, 2011, Plaintiff filed this action against Defendant
Changzhou Nanxiashu Tools for trademark and copyright
infringement, unfair competition, and unfair business
practices. Defendant was the Chinese manufacturer of
Plaintiff's patented utility trailers. Plaintiff sought
damages and injunctive relief.
8, 2011, Plaintiff filed Proof of Service (#5) and stated
Defendant had been served on Jun 29, 2011, by serving Marc
Friedman, corporate counsel for Central Purchasing, Inc.
Defendant did not file an appearance or response to
Plaintiff's Complaint within the time required.
August 11, 2011, Plaintiff filed a Motion (#11) for Default
Judgment against Defendant. In a Declaration (#12) filed in
support of the Motion, Plaintiff stated Defendant was served
on June 29, 2011, by serving Central Purchasing, Inc.,
Defendant's registered agent for service of process in
the United States. Plaintiff also stated he had obtained the
registered agent's name from the U.S. Department of
Transportation, National Highway Traffic Safety
Administration, which identified Central Purchasing as
Defendant's agent pursuant to 49 U.S.C. § 30164 and
49 C.F.R. Part 551, Subpart D.
August 19, 2011, the Court entered a Default Judgment and
Permanent Injunction (#16) against Defendant. The Judgment
did not specify any money damages, but it included (1) a
permanent injunction for the return of Plaintiff's
property, including designs, blueprints, tools, dies,
manuals, photographs, written materials, and computer files
used to manufacture Plaintiff's trailers and (2)
prohibited Defendant from continuing to manufacture, to
export, or to sell in the United States trailers that
infringed on Plaintiff's designs.
September 14, 2016, Plaintiff filed a Motion (#18) to Reopen
Case and [for] an Order to Show Cause Why Defendant Should
Not Be Held in Contempt for failure to comply with the
requirements of the permanent injunction. Plaintiff also
sought monetary damages.
September 16, 2016, the Court ordered (#21) Defendant to file
a response to Plaintiff's Motion (#18) by October 3,
2016. On September 16, 2016, Plaintiff served a copy of the
Court's Order on Defendant by email; by Federal Express
to Defendant's office in China; and by priority mail to
Defendant's agent, Central Purchasing. Defendant did not
file a response to Plaintiff's Motion.
October 12, 2017, the Court issued an Order to Show Cause
(#24) in which it set a hearing for November 3, 2017, and
required Defendant to appear and to show cause why it should
not be held in contempt. On October 17, 2016, Plaintiff
served a copy of the Court's Order on Defendant by email;
by Federal Express to Defendant's office in China; and by
priority mail to Defendant's agent, Central Purchasing.
November 3, 2017, the Court held the contempt hearing. No one
appeared on behalf of Defendant. The Court found Defendant in
contempt and directed Plaintiff to submit further briefing on
the issue of damages. On March 3, 2017, Plaintiff filed a
Supplemental Memo (#36) in support of his request for $11,
947, 505 in damages.
18, 2017, the Court entered a Supplemental Judgment (#38)
against Defendant for damages in the amount of $6, 399, 540.
February 6, 2018, Defendant filed an Emergency Motion (#40)
for Stay of Enforcement of the Judgment.
February 7, 2018, Defendant filed its Motion (#45) to Vacate
Default, Default Judgment and Supplemental Judgment and for
Dismissal Based on Lack of Jurisdiction.
February 20, 2018, the Court heard oral argument on
Defendant's Emergency Motion (#40) for Stay and denied
March 7, 2018, the Court heard oral argument on
Defendant's Motion (#45) to Vacate. Following oral
argument the Court allowed the parties to file supplemental
memos regarding the issue of statutory construction related
to § 30164.
April 2, 2018, the Court took Defendant's Motion to
Vacate under advisement.
Civ. P. 60(b) provides:
Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may
relieve a party . . . from a final judgment . . . for the
following reasons: . . . (4) the judgment is void; . . ..
motion to vacate a judgment under Rule 60(b)(4) does not have
a time limit and, therefore, “may be made at any
time.” S.E.C. v. Internet Solutions for Bus.,
Inc., 509 F.3d 1161, 1165 (9th Cir. 2007). A final
judgment is void and may be set aside “only if the
court that considered it lacked jurisdiction . . . over the
parties to be bound.” Id. (citing United
States v. Berke, 170 F.3d 862, 883 (9th Cir. 1999)). A
court lacks jurisdiction when there has been insufficient
service of process. Id. See also Travelers Cas. and Sur.
Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir.
2009)(holding federal court is without personal jurisdiction
over a defendant unless the defendant has been properly
defendant bears the burden of proving the existence of a
justification for relief under Rule 60(b). Cassidy v.
Tenorio, 856 F.2d 1412, 1415 (9th Cir. 1988)(citing
Atchison, Topeka and Santa Fe Railway Co. v.
Barrett, 246 F.2d 846, 849 (9th Cir. 1957)).
if service of process is challenged before entry of default,
the plaintiff bears the burden of establishing the validity
of service. Capsugel Belgium NV v. Bright Pharma Caps,
Inc., No. 3:15-cv-321, 2015 WL 7185463, at *2 (D. Or.
Nov. 13, 2015). When, however, the defendant delayed in
bringing the motion to vacate until after entry of default
judgment, the defendant bears the burden to prove that
service did not occur. Internet Solutions, 509 F.3d
contends the Judgments should be vacated on the grounds that:
(1) the Judgments are void ab initio for ineffective
service of process, (2) service of process did not conform to
Oregon service rules, and (3) this Court lacks personal
jurisdiction over Defendant because Defendant does not have
sufficient minimum contacts with this forum. Defendant also
asserts the Court should dismiss Plaintiff's Complaint on
the ground that Defendant has a meritorious defense to each
of Plaintiff's claims.
in turn, contends he has properly served Defendant with
Summons and Complaint by service on its registered agent,
Defendant had actual notice of this lawsuit, service under
Oregon rules was accomplished, and Defendant has sufficient
contacts with this forum to establish the Court's
personal jurisdiction over Defendant.
Personal Jurisdiction (Minimum Contacts)
noted, Defendant contends it does not have sufficient minimum
contacts with this forum to subject it to the personal
jurisdiction of this Court, the Judgments are void, and the
Court should dismiss this action.
however, contends the allegations in his Complaint establish
Defendant's activities were directed to Oregon and are
sufficient to ...