Boehm et al v. Zimprich et al

Filing 198

ORDER granting 189 Motion to Amend Briefing Schedule; granting 186 Motion to Vacate 183 Default Judgment. The Judgment is vacated and Defendant Richard Moncher is dismissed from the case. Signed by District Judge James D. Peterson on 4/13/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

SCOTT BOEHM and DAVID STLUKA,
Plaintiffs,
v.
OPINION & ORDER
DAN ZIMPRICH, CIARA ZIMPRICH,
LEGENDS OF THE FIELD, LLC,
GAMEDAY SPORTS, LLC, and
RICHARD MONCHER,

14-cv-16-jdp

Defendants.
A year after the court entered default judgment against defendant Richard Moncher
for copyright infringement, Dkt. 183, Moncher moved to vacate it. Dkt. 186. He contends
that he was never properly served, which means that this court never had personal
jurisdiction over him and the default judgment entered against him is void. He asks the court
to set aside the judgment under Federal Rule of Civil Procedure 55(c), and to give him relief
from judgment under Rule 60(b)(4). The court will do so and dismiss Moncher from the
case.

BACKGROUND
Plaintiffs alleged that Moncher infringed their copyright by offering canvases using
one of their images for sale on his website. They contacted Moncher via email with a cease
and desist letter in April 2013. Just over a year later, they attempted to serve him with the
complaint in this case. They executed a skip trace to locate Moncher and came up with an
address in Beverly Hills, California. That address turned out to be for a company that rents
mailboxes. Nevertheless, plaintiffs attempted to execute abode service at that address and left

the complaint with a woman there named Maria. The case proceeded without Moncher’s
participation and he defaulted. The court entered judgment against him on February 20,
2015.
A year later, Moncher moved to vacate the default. Moncher claims that he has never
lived at the address that plaintiffs used, does not know the person who accepted service on
his behalf, and never received proper service.

ANALYSIS
To vacate a default judgment, Moncher must demonstrate that he had good cause for
his delayed action, that he took quick action to set aside the default, and that he has a
meritorious defense against plaintiffs’ claims. Cracco v. Vitran Exp., Inc., 559 F.3d 625, 630
(7th Cir. 2009). Moncher does not attempt to explain his delay or to articulate a meritorious
defense. Instead, he insists that because he was never properly served, the court never
exercised personal jurisdiction over him. If that is true, then the default judgment against him
is void. Philos Techs., Inc. v. Philos & D, Inc., 645 F.3d 851, 855 (7th Cir. 2011) (“A judgment
entered against a defendant over whom the court had no jurisdiction is void, and no court
has the discretion to refuse to vacate that judgment once it recognizes its lack of
jurisdiction.”).
Once plaintiffs filed this suit, it was their obligation to timely serve each defendant
with a summons and copy of the complaint to establish personal jurisdiction. Fed. R. Civ. P.
4(c)(1); see also Claus v. Mize, 317 F.3d 725, 727 (7th Cir. 2003). Plaintiffs elected to serve
Moncher via abode service by delivering a summons and copy of the complaint to Moncher’s
home pursuant to Rule 4(e). But the address that they used was not Moncher’s home, and

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the person who took the papers never passed them along, so service was not perfected.
Moncher’s actual knowledge of the litigation, which plaintiffs allege Moncher had, is
insufficient to cure the deficient service. Mid-Continent Wood Prods., Inc. v. Harris, 936 F.2d
297, 301 (7th Cir. 1991). There is no evidence that Moncher was evading service or that
plaintiffs could not have successfully used another means to serve him. It should have been
obvious that a rental mailbox storefront was not an abode, and plaintiffs could have tried
again to serve Moncher, but apparently, they made only the one unsuccessful attempt.
Without proper service, the court does not have personal jurisdiction, making the
default judgment void. United States v. Ligas, 549 F.3d 497, 500 (7th Cir. 2008). Because the
default judgment is void, Rule 60(b) relief is appropriate. Philos Techs., 645 F.3d at 855
(“Once a district court decides that the underlying judgment is void, the trial judge has no
discretion and must grant the appropriate Rule 60(b) relief, and it is a per se abuse of
discretion to deny a Rule 60(b)(4) motion when the trial court has no jurisdiction over the
action.” (internal quotation marks and citation omitted)). Accordingly, the default judgment
will be vacated and Moncher will be dismissed from the case.

ORDER
IT IS ORDERED that:
1. Defendant Richard Moncher’s motion to vacate the default judgment against him,
Dkt. 186, is GRANTED. The judgment is vacated and Moncher is dismissed from
the case.

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2. Plaintiffs’ motion for an extension, Dkt. 189, is GRANTED.
Entered April 13, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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