The opinion of the court was delivered by: CHIN
Defendant George Wang moves to vacate a default judgment entered against him on November 27, 1996 for failure to answer or move within the time permitted. Wang argues that he was not properly served pursuant to Fed. R. Civ. P. 4(e). Accordingly, he insists that the judgment is void and must be set aside. See Fed. R. Civ. P. 60(b)(4). In addition, he seeks dismissal of the complaint on the ground that proper proof of service was not filed with the Clerk of the Court within 120 days of the filing of this action.
For the reasons that follow, I hold that Wang was properly served. Defendant's motion to vacate the judgment and dismiss the complaint is therefore denied.
This is a Lanham Act case arising from a licensing agreement between Howard Johnson International, Inc., and Wang, which permitted the latter to use the Howard Johnson trademarks subject to certain contractual conditions. Wang used the Howard Johnson trademarks and tradenames in connection with a guest lodging facility located at 7400 N.W. Eighth Avenue, Gainesville, Florida. Howard Johnson sued Wang, alleging that he violated the Lanham Act and the agreement by failing to cure quality assurance breaches and financial defaults, and that even after the contract had been terminated by Howard Johnson, Wang continued to use Howard Johnson's marks without authorization.
On August 23, 1996, this Court ordered Wang to show cause why a preliminary injunction should not be entered against him. Plaintiff was required to personally serve copies of the order and complaint on Wang within seven days and by overnight courier service by August 26, 1998.
On August 26, 1998, plaintiff's counsel sent by Federal Express a copy of the complaint and order to show to cause to Wang at 7516 Newberry Road, Gainesville, Florida, the address for Wang as set forth in the licensing agreement.
Herbert R. Hildreth, the process server hired by plaintiff, states under oath that he attempted to serve Wang personally three separate times on August 26 and 28 of 1996 at the Day's Inn Hotel, located at the 7516 Newberry Road address. (See Pl. Ex. A). Hildreth states that on his first visit to the hotel on August 26, he was informed by the desk clerk that Wang was the owner of the hotel, maintained a residence there, "as well as at other hotel properties he owned," and was not present but might turn up later. (Hildreth Aff. P 4).
Hildreth further states that on his second visit to the hotel on the morning of August 28, he spoke to John Osley, who "identified himself as the General Manager of the Days Inn hotel and Mr. Wang's other properties." (Hildreth Aff. P 5). According to Hildreth, Osley told him that Wang was the owner of the Day's Inn and maintained a residence "at this hotel as well as at other hotel properties he owned." (Hildreth Aff. PP 4, 7). Osley also allegedly told Hildreth that Wang would be coming to the hotel from one of his other properties later that day.
When Wang failed to show up at the property on Hildreth's third attempt at personal service that same afternoon, Hildreth served the complaint and summons on Osley, who, according to Hildreth, stated that "he could accept service of the papers." (Hildreth Aff. P 6). Osley signed the papers as "general manager of Days Inn."
Osley's account of this encounter differs somewhat from Hildreth's. In a terse, single-page affidavit, he explicitly denies informing Hildreth that Wang maintained a residence at the Day's Inn or that he would accept papers on behalf of Wang personally. Indeed, he states in his affidavit that he "had no authority to accept service for any other entity other than the Days Inn Hotel." (Osley Aff. P 5). Nevertheless, he acknowledges that he signed for the documents. It is unclear what Osley did with the complaint and summons after accepting them from Hildreth; he does not say.
John E. Page, Esq., counsel for plaintiff, states under oath that on or about September 4, 1996, he received a telephone call from Osley, who purportedly identified himself as manager of Wang's properties. According to Page, during this conversation Osley confirmed that the summons and complaint had been received, but that neither Osley "nor Wang understood what the lawsuit was about since the hotel had ceased using any of HJI's trade names and trademarks in connection with the operation of guest lodging facility at 7400 NW Eighth Avenue and was either scheduled to be or had been demolished." (Page Aff. P 8).
Wang failed to respond to plaintiff's application for a preliminary injunction and never answered the complaint. The preliminary injunction was denied as moot on September 20, 1996. On November 8, 1996, after defendant's time to answer or move had expired, plaintiff moved for a default judgment. The motion was granted on ...