Pace v. Lundh

[5] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA [7] STANLEY PACE, CASE NO. C18-5965 BHS [8] Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR DEFAULT JUDGMENT AND VACATING 10 JORAN LUNDH, ENTRY OF DEFAULT 11 Defendant. [12] 13 This matter comes before the Court on Plaintiff Stanley Pace’s motion for default 14 judgment, Dkt. 18, and the Court’s order to show cause, Dkt. 23. 15 Pace seeks a declaratory judgment that his registration and use of the domain 16 name [lascal.com] does not violate Defendant Joran Lundh’s rights and that Pace may 17 keep the name. Dkt. 1. In June 2019, Judge Ronald B. Leighton1 granted Pace’s motion 18 for alternative service, allowing Pace to serve Lundh via foreign service of process. Dkt. 19 8. In October 2019, default was entered against Lundh. Dkt. 12. Pace then moved for 20 default judgment, Dkt. 13, which the Court denied, Dkt. 14. On March 5, 2021, Pace [21] 1 This case was transferred to the undersigned following Judge Leighton’s retirement 22 from the federal bench. Dkt. 15. 1 renewed his motion for default judgment, which is currently pending before the Court. 2 Dkt. 18. 3 In April 2021, the Court received an email from Lundh stating that he had not 4 been to his Hong Kong residence for over a year due to the COVID-19 pandemic and is 5 currently residing in Thailand, Dkt. 22, and the Court construed the email as Lundh’s 6 appearance, see Dkt. 23 at 2. The Court ordered Lundh to show cause why default should 7 be set aside or why default judgment should not enter. Id. In May 2021, Lundh responded 8 to the Court’s show cause order, explaining that he is entitled to get any law 9 correspondence in Swedish pursuant to the Hauge Convention. Dkt. 24. 10 Based on the Court’s own research, it appears that Lundh is correct. As both the 11 United States and Sweden are signatories to the Hague Service Convention, the Hague 12 Service Convention provides “the exclusive means for service of process.” See 13 Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 706 (1988). The primary 14 service method under the Hague Service Convention is through the signatory’s Central 15 Authority. Convention on the Service Abroad of Judicial and Extrajudicial Documents in 16 Civil or Commercial Matters arts. 2, 3, 5, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 17 6638 (“Hague Service Convention”). After receiving a request, the Central Authority 18 serves the documents through its own internal service of process mechanisms. Id. art. 5. 19 If a State does not object, Article 10(a) permits foreign persons “the freedom to send 20 judicial documents, by postal channels, directly to persons abroad.” Id. art. 10(a). 21 Under Article 5 of the Hague Convention, the Central Authority of a signatory 22 nation may require the document to be served to be written in or translated into the 1 official language of the state addressed. Id. art. 5 (“[T]he Central Authority may require 2 the document to be written in, or translated into, the official language or one of the 3 official languages of the State addressed.”). Though case law specific to Sweden is 4 limited, two courts have concluded that Sweden requires certain judicial documents to be 5 translated, including summons and complaints. See Borschow Hosp. & Med. Supplies, 6 Inc. v. Burdick-Siemens Corp., 143 F.R.D. 472, 480 (D.P.R. 1992) (“service must be 7 made in the language of the recipient in order to be effective”); Johnson v. Pfizer Inc., 32 8 Conn. L. Rptr. 207 , 2002 WL 1041984 , at *2 (Conn. Super. Ct. 2002). 9 Pace did not translate the complaint or summons and therefore has not perfected 10 service. See Dkt. 9 and exhibits attached thereto. His motion for default judgment, Dkt. 11 18, is therefore DENIED without prejudice. 12 And pursuant to Federal Rule of Civil Procedure 55(c), the Court orders that the 13 entry of default, Dkt. 12, shall be set aside. Rule 55(c) allows a court to set aside an entry 14 of default for good cause. To determine “good cause”, “a court must ‘consider[ ] three 15 factors: (1) whether [the party seeking to set aside the default] engaged in culpable 16 conduct that led to the default; (2) whether [it] had [no] meritorious defense; or (3) 17 whether reopening the default judgment would prejudice’ the other party.” United States 18 v. Signed Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 19 2010) (quoting Franchise Holding II, LLC v. Huntington Restaurants Group, Inc., 375 20 F.3d 922 , 925–26 (9th Cir. 2004) (alterations in original)). The standard to set aside an 21 entry of default is disjunctive, meaning that a finding of one of the factors is sufficient is 22 sufficient to set aside the entry. See id. Reopening the default would not prejudice Pace as 1 it would allow him to perfect service, and “judgment by default is a drastic step 2 appropriate only in extreme circumstances; a case should, whenever possible, be decided 3 on the merits.” Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984). Indeed, other courts have 4 acknowledged that “[d]efault cannot be entered where there was insufficient service of 5 process.” Scott v. District of Columbia, 598 F.Supp.2d 30, 36 (D.D.C. 2009). 6 Therefore, Pace’s motion for default judgment, Dkt. 18, is DENIED without 7 prejudice and the Entry of Default dated October 17, 2019, Dkt. 12, shall be 8 VACATED. Pace shall serve Lundh in accordance with this Order and the Hague 9 Convention no later than August 13, 2021. 10 IT IS SO ORDERED. 11 Dated this 1st day of July, 2021. A [13] BENJAMIN H. SETTLE [14] United States District Judge