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of the summons and complaint to Youngtek’s management. Youngtek maintains that this mailing process took “a couple weeks.” Wijnveen Aff. at 12 (docket no. 15-4). When Youngtek’s management received the documents, it consulted with its European counsel and was advised that the documents had not been properly served. On April 29, 2011, Youngtek’s European counsel sent a letter to Keys Systems GmbH, the registrar for the domain names TnaFlix.com and EmpFlix.com, which referenced this lawsuit. Because Youngtek assumed that proper service of process might be made it contacted attorney Valentin Gurvitis to retain him to represent it in this matter. After he was formally retained, Gurvitis spent two weeks locating qualified local counsel in Iowa. Gurvitis Aff. at 6 (docket no. 15-7). On June 17, 2011, Gurvitis retained local counsel in Iowa. Gurvitis Aff. at 6. On this same date, Youngtek filed its Motion To Set Aside Default. follows: Case 3:11-cv-03005-MWB Document 20 Filed 07/12/11 Page 4 of 20 II. LEGAL ANALYSIS A. Entry Of Default And Default Judgment Rule 55 of the Federal Rules of Civil Procedure provides, in pertinent part, as Rule 55. Default; Default Judgment (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default. (b) Entering a Default Judgment. (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk--on the plaintiff’s request, with an affidavit showing the amount due--must enter judgment for that amount and costs against 4
FED. R. CIV. P. 55. a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter. (c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b). In Hayek v. Big Brothers/Big Sisters of America, 198 F.R.D. 518 (N.D. Iowa 2001), I summarized the mechanics under Rule 55 of obtaining the entry of default and default judgment, as well as the method for setting aside a default or default judgment, as follows: Case 3:11-cv-03005-MWB Document 20 Filed 07/12/11 Page 5 of 20 5
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