AE Association, LLC v. WTI Corporation Limited et al

Filing 45

ORDER Continuing Hearing and Requiring Supplemental Materials. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AE Association, LLC,

4:17-CV-10392-TGB-APP

Plaintiff,
vs.
WTI Corporation Limited et al.,

ORDER CONTINUING
HEARING AND REQURING
SUPPLEMENTAL
MATERIALS

Defendants.
This case concerns an American sales representative firm (“AE”)
and several defendant manufacturing companies based in China or in
Hong Kong. Plaintiff alleges that Defendants owe commission payments
for sales that AE helped arrange for them. As it stands, Plaintiff has
stipulated to the dismissal of all Defendants except for Ningbo
LongYuan, a Chinese corporation. Fed. R. Civ. P. 55(a) allows the Court
to enter a default against a party who “has failed to plead or otherwise
defend.” On October 29, 2018, the Court entered a default against Ningbo
LongYuan after it failed to appear in this case, despite Plaintiff’s best
efforts to contact and effect service of process on it. ECF No. 18.
After the default was entered, Plaintiff conducted discovery in order
to determine exactly how much money it was owed by Ningbo LongYuan.
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Having gathered that information, AE has now filed a Motion for Default
Judgment (ECF No. 43) describing the commission payments Plaintiff
believes it is owed for sales it allegedly facilitated between Ningbo
LongYuan and Borg Warner (a U.S.-based company that is not a party to
this action). Plaintiff’s motion disclosed that on May 10, 2019, Plaintiff
received an e-mail from someone purporting to represent Ningbo
LongYuan. This email indicated that service of process had finally been
successfully completed and included Ningbo LongYuan’s Answer to the
Complaint. ¶ 7, ECF No. 43, PageID.978.
At the hearing conducted on Plaintiff’s Motion for Default
Judgment on May 7, 2021, the Court made inquiries regarding the
contact with Ningbo LongYuan, as well as the basis for Plaintiff’s
damages request. Plaintiff indicated that it did not reply to Ningbo
LongYuan’s email of May 2019.
If a party has “appeared” in a case, it must receive at least seven
days’ notice before any hearing on a default judgment. Fed. R. Civ. P.
55(b)(2). Although the typical method of “appearance” is to file an
appearance with the court, this is not the only manner of appearing:
“courts now look beyond the presence or absence of such formal actions
to examine other evidence of active representation. Several cases have
held that informal contacts between parties may constitute an
appearance.” Lutomski v. Panther Valley Coin Exch., 653 F.2d 270, 271
(6th Cir. 1981). Ningbo LongYuan has never filed an appearance with
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this Court, nor does it appear to have retained a U.S.-based attorney, but
it did contact Plaintiff by email in what appears to be an attempt to
respond in this case. The Court finds that this is sufficient to be
considered an “appearance” and that Ningbo LongYuan must be given
notice that a hearing is being held on a Motion for Default Judgment
against it before the Court can properly enter any judgment.
It is therefore ORDERED that:
 The hearing on Plaintiff’s Motion for Default Judgment will
be continued to June 14, 2021 at 2 PM Eastern Standard
Time. Within seven days of the date of this Order, Plaintiff
shall serve notice by email and by FedEx to Defendant Ningbo
LongYuan of the above hearing date and time, the purpose of
the hearing, the contents of this order, and the need for
Defendant Ningbo LongYuan to retain U.S. counsel to
represent it in this matter. Plaintiff shall file a notice with the
Court certifying that it has served Ningbo LongYuan and
shall include a copy of the notice provided.
 No later than seven days prior to the continued hearing date,
Plaintiff will file the following supporting materials:
o Any records from Borg Warner in support of Plaintiff’s
request for damages, which may be accompanied by a
motion to seal if necessary to preserve confidentiality;

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o Any other records supporting Plaintiff’s request for
estimated or future commissions;
o Any corroborating documentation Plaintiff is able to
obtain in support of the affidavit of its executive (ECF
No. 43-3), in particular:
 Any information regarding its relationship with
Ningbo LongYuan;
 Any communications or records of meetings
between its executive and representatives of
Ningbo LongYuan; and
 Any additional information it may have in support
of its contention (¶ 2, ECF No. 43, PageID.976)
that Ningbo LongYuan understood that it was
engaging AE to solicit business and that AE is
therefore owed the commissions as described.

SO ORDERED this 13th day of May, 2021.
BY THE COURT:

/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
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