United States District Court, S.D. New York
May 18, 2004.
BURDA MEDIA, INC., and BURDA HOLDING, GmbH & CO. KG, a German Limited Partnership, Plaintiff, -against- FRITZ G. BLUMENBERG, CHRISTIAN VIERTEL, HOT LINE DELIVERY, INC., TELECOMMUNICATION PARTNERS LIMITED, TRANSVIDEO, TV BROADCAST CENTER, AGATE REALITY and SALVADORA BLUMENBERG, Defendants
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Christian Viertel ("Viertel") has moved to vacate the
default judgment entered against him by this Court on April 10, 2000. For
the reasons set forth below, the motion is denied.
On September 24, 1997, plaintiffs Hubert Burda Media, Inc. (formerly
known as Burda Media, Inc.) and Hubert Burda Media Holding GmbH & Co.
(formerly known as Burda Holding, GmbH & Co. KG) (collectively "Burda")
commenced this action to recover monetary damages, restitution, and other
relief. The defendants included Fritz G. Blumenberg ("Blumenberg"),
Viertel and the companies Telecommunication Partners Limited,
Transvideo, TV Broadcast Center and Agate Reality (the "Viertel
On January 16, 1998, Burda's attorneys wrote to the Court requesting an
extension of time until August 21, 1998 to serve Viertel and "the Viertel
companies." The request was granted on January 21, 1998. Burda's
attorneys requested an additional 120-day extension on August 20, 1998.
That request was granted on August 25, 1998. On November 12, 1998, Burda's attorneys filed a document with the Court
entitled "Proof of Service Upon Defendants Viertel, Telecommunication
Partners Limited, Transvideo, TV Broadcast Center and Agate Reality
Pursuant to Rule 4 and Hague Convention," (hereafter, "Proof of Service")
which included various attachments.
On December 29, 1999, Burda's attorneys filed an application for entry
of default against Viertel and Telecommunication Partners Limited. On
March 8, 2000, the Clerk of the Court signed a Clerk's Certificate of
Default by defendants Christian Viertel and Telecommunication Partners
On March 27, 2000, Burda's attorneys submitted a proposed default
judgment against defendants Christian Viertel and Telecommunication
Partners Limited. The default judgment was signed on April 6, 2000, and
entered on the docket on April 10, 2000.
On October 2, 2002, Viertel was found guilty by a jury on each count of
a three-count indictment charging conspiracy to commit mail and wire
fraud, as well as substantive counts of mail fraud and wire fraud. See
United States v. Viertel, S2 01 Cr. 571, 2003 WL 367867 (S.D.N.Y. Feb.
19, 2003) (motion for new trial following conviction denied). "The
indictment charged Viertel with conspiring with Blumenberg to commit mail
and wire fraud by submitting false invoices to Burda from five companies
owned by Viertel. . . . The Indictment also charged Viertel with substantive
counts of mail and wire fraud in furtherance of the conspiracy."
Id. at *1.
On October 31, 2003, Viertel filed a motion to vacate default judgment
against Viertel, to dismiss action, and to sanction plaintiff and their
attorneys. Burda responded to the motion and the motion was pending as of
January 28, 2004.
On March 30, 2004, the Court issued an order adjourning Viertel's
motion to vacate the default judgment until April 28, 2004 and directing
the parties to make "any additional submissions with respect to the
adequacy of service under the Hague Convention and the date of any actual
knowledge of the defendant Christian Viertel ("Viertel") of the default
judgment entered against him."
Pursuant to the Order, both Burda and Viertel have submitted further
materials. Oral argument was heard on the motion on April 28, 2004, at
which time the motion was deemed fully submitted.
The following facts concern the attempts made by Burda to serve Viertel
and several of the companies named as defendants. The facts are
undisputed except as noted. On September 30, 1997, Burda attempted personal service on Viertel as
well as Telecommunication Partners Limited, Transvideo, TV Broadcast
Center and Agate Reality in New York, because the companies operated out
of offices in New York and Viertel maintained an apartment there.
Personal service was unsuccessful. On January 16, 1998, Burda represented
that it had not determined Viertel's location in order for service to be
made in accordance with international law. Viertel maintains that Burda
knew his address in Cap Ferrat, France at least since September 12, 1996,
when it addressed correspondence to him there.
On January 15, 1998, Burda wrote to the Clerk of Court requesting that
copies of the summons and complaint be sent to TV Broadcast Center care
of Viertel at his address in Cap Ferrat. All but one of the envelopes
were returned to Burda's attorneys in New York with the receipts
attached, and the whereabouts of the other envelope is unknown.
On July 14, 1998, Burda's attorneys completed a Form USM-94 "Request
for Service Abroad of Judicial or Extrajudicial Documents" (hereafter,
"Form USM-94") and "Summary of Document to be Served," in accordance with
the Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, 20 U.S.T. 36, T.I.A.S. 6638
(the "Hague Convention"). The documents are described in the Summary in
French as "Assignation et plainte," which translates as summons and complaint. The Form USM-94 was forwarded to the French authorities
along with copies of the summons and complaint in both French and
In making its second request for an extension on August 20, 1998, Burda
wrote that since making its first application in January 1998,
"plaintiffs have obtained certain additional information about Mr.
Viertel's whereabouts which led plaintiffs to direct Requests for Service
to France." Viertel argues that Burda knew that Viertel was in France as
early as 1996.
The proof of service filed by Burda states that the attached documents
that on August 3, 1998 and August 12, 1998, copies of
the summons and complaint in this action, with
appropriate translations, were served on Defendants
Viertel, Telecommunication Partners Limited,
Transvideo, TV Broadcast Center and Agate Reality . .
. in France pursuant to Fed.R. Civ. P. 4, Articles 5
and 6 of the . . . Hague Convention, and Orders of the
Court dated January 21, 1998 and August 25, 1998
extending Burda's time to serve the . . . Defendants.
Attached to the proof service are: 1) the Form USM-94 in French, to
the Ministry of Justice, Paris, France, executed July 14, 1998 requesting
service on Viertel and the Viertel companies; 2) the summons and
complaint in French and English; 3) an "Original executed police report
(in French, with English translation) by Philippe Lemesre and Robert
Pascal of the French Police Judiciare confirming the service of summons and complaint upon Defendants TV
Broadcast Center and Transvideo on August 3, 1998)"; and 4) an "Original
executed police report (in French, with English translation) by Robert
Pascal of the French Police Judiciare confirming the service of summons
and complaint upon defendants Christian Viertel, TV Broadcast Center,
Telecommunication Partners Limited and Agate Reality on August 12, 1998."
The translated police report from August 12, 1998 describes the "Nature
of the Actions" as "Delivery of judicial instruments from the Court of
NEW YORK (USA)," and the case is listed as "VIERTEL, Christian." The
narrative section of the report states that on "August 12, 1998 at 18:50
hours [i.e., 6:50 p.m.], acting to accomplish the purposes of the
transmission orders cited in the reference, we went to the residence of
Mr. VIERTEL, Christian." It also states that Viertel "declared to us":
I acknowledge having taken possession of two files
[deux dossiers] concerning me directly, since they are
in my name. On the other hand, I refuse to accept the
documents [les documents] concerning the companies TV
Broadcast Center, Telecommunication Partners Limited
and Agathe [sic] Reality, since I have nothing to do
with those companies.
I point out, however, that the period allowed for the
service of these documents has expired. Nevertheless,
I agree to take cognizance of the documents which
August 12, 1998, at 19:00 hours [i.e., 7:00 p.m.] Having read the above declaration, I stand by it,
having nothing to change, add, or retract therein.
The police report also states that Viertel signed the declaration
Robert Pascal ("Pascal"), the French gendarme who visited Viertel's
residence in Cap Ferrat on August 3 and August 12, 1998, testified in
Viertel's criminal trial on September 18, 2003. Pascal testified that he
delivered documents from the United States to Viertel which he had
received "via the office of the Nice prosecutor." United States v.
Viertel, S2 1:01 CR 571-003 (JGK) Transcript, dated September 18, 2003
("Tr.") at 142. Pascal described the documents as "emanating from the
United States related to [Viertel]," id. at 157, as "documents coming
from a New York court that I had to deliver to him," and "documents that
were directly related to him and were concerning companies." Id. at 158.
After Pascal showed Viertel the first page of "five, six, or seven" sets
of documents, Viertel accepted "two sets of documents concerning him
directly with his name on it." Id. at 158-59. Pascal also testified that
he knew that the papers he was delivering were legal papers, see id. at
166, and that the documents he was delivering were "coming, emanating
from a court." Id. at 174.
In a sworn affidavit, dated October 6, 2003, Viertel denied that a
summons was delivered to him. See Affidavit of Christian Viertel ("Viertel Aff.") ¶ 9-10. Viertel testified that Pascal
delivered two "transmission folders" that concerned him directly, but the
did NOT contain U.S. COURT SUMMONS. The
"transmissions" did not include a U.S.M. 94 form
[nor were they] delivered pursuant to Article 5 or 6
of the Hague Convention. The Affiant did not try to
AVOID a Hague Convention service, since no such
service was attempted.
Id. at ¶ 10.
Burda did not receive back from the French authorities an executed
"Certificate" indicating that Viertel had been properly served. The
Certificate is on page 2 of the Form USM-94 initially forwarded to the
French authorities, and was still blank when it was returned to Burda.
The application for entry of default filed by Burda's attorneys on
December 29, 1999, stated that "proper service of the summons and
complaint on Viertel and Telcopa [Telecommunication Partners Limited] was
completed on August 3, 1998 and August 12, 1998 in France pursuant to
Fed.R.Civ.P. 4 and Articles 5 and 6 of the Hague Convention . . .
"The Clerk's Certificate of Default signed on March 8, 2000 states that"
a copy of the summons and complaint was timely served on defendant
Christian Viertel and defendant Telecommunication Partners Limited by
serving Christian Viertel in his individual and representative capacity
in person in France pursuant to Fed.R.Civ.P. 4 and the Hague Convention . . .
on August 12, 1998 . . ." Finally, the proposed default judgment against
Viertel and Telecommunication Partners Limited submitted by Burda states
that "copies of the Summons and Complaint were timely served on Viertel
and TelCoPa on August 12, 1998, when a French police official personally
delivered them to Viertel in his individual and representative capacities
at his home in Cap Ferrat, France pursuant to Fed.R.Civ.P. 4 and the
Viertel's Motion is Not Time-Barred
When Viertel initially filed this motion pro se, he specified that he
was seeking relief from the default judgment pursuant to Rules 60(a),
60(b)(2), 60(b)(3), 55(b)(1) and 55(b)(2). Any motion to set aside a
default judgment for violations of Rule 55 must be made "in accordance
with Rule 60(b)." Fed.R.Civ.P. 55(c); see also BMG Music Pub. Ltd. v.
Croma Music Co., 01 Civ. 1941, 2002 WL 1379996, at *2 (S.D.N.Y. Jun. 26,
2002) ("Rule 55(c) applies when only a default has been entered, whereas
Rule 60(b) applies when a default judgment has been entered.") (citation
omitted). Further, any motion pursuant to Rules 60(b)(2) and 60(b)(3) is
barred by the one-year limitations period, as it was filed over two years
after the entry of judgment. The limitations period for motions made
under 60(b)(1), (2), or (3) "is `absolute.'" Warren v. Garvin,
219 F.3d 111, 114 (2d Cir. 2000) (quoting 12 James Wm. Moore, Moore's Federal Practice § 60.65 [a], at 60-200 (3d
ed.1997)). Viertel has also not identified any "clerical mistakes in
judgments . . . [or] errors therein arising from oversight or omission"
with respect to his default judgment which would justify relief under
Rule 60(a). See Dudley v. Penn America Ins. Co., 313 F.3d 662, 675 (2d
Cir. 2002) (Sotomayor, J., concurring) ("A Rule 60(a) motion is directed
to errors or omissions in the essentially ministerial act of transcribing
the court's rendered judgment into writing . . . ").
After the motion was adjourned, Viertel's counsel appeared in this
case. Viertel's filings after securing representation indicate that he
has moved pursuant to Rule 60(b)(4) for relief from the judgment on the
grounds that the Court lacks jurisdiction and that the judgment is void.
According to the language of Rule 60(b), a Rule 60(b)(4) motion must be
"made within a reasonable time." Fed.R.Civ.P. 60(b). However, "courts
have been exceedingly lenient in defining the term `reasonable time,'
with respect to voidness challenges". In fact, it has been oft-stated
that, for all intents and purposes, a motion to vacate a default judgment
as void `may be brought at any time.' Central Vermont Public Service
Corp. v. Herbert, 341 F.3d 186, 189 (2d Cir. 2003) (quoting Beller &
Keller v. Tyler, 120 F.3d 21, 24 (2d Cir. 1997)); Velez v. Vassallo,
203 F. Supp.2d 312, 318 (S.D.N.Y. 2002) ("Nearly overwhelming authority
exists for the proposition that there are no time limits to a challenge
to a void judgment because of its status as a nullity.") (quoting United States v. One Toshiba Color
Television, 213 F.3d 147, 157 (3d Cir. 2000)).
"Unlike motions made pursuant to other subsections of Rule 60(b), the
court lacks discretion with respect to a motion made under Rule 60(b)
(4); if void, the court must vacate the judgment." Tuff-N-Rumble
Management, Inc. v. Sugarhill Music Pub, Inc., 99 F. Supp.2d 450, 455
(S.D.N.Y. 2000); Herbert, 341 F.3d at 189 ("The district court has no
discretion in ruling on a 60(b)(4) motion, the judgment is either void or
it is not.") (citation omitted).
The procedural requirement of effective service of
process must be satisfied before a Court can assert
personal jurisdiction over a defendant. A judgment
obtained in the absence of personal jurisdiction is
void within the meaning of Rule 60 (b)(4). Hence, a
default judgment entered against the defendant by
means of improper service is void under Rule
Local 78, Asbestos, Lead & Hazardous Waste Laborers, AFL-CIO v. Termon
Construction, Inc., 01 Civ. 5589, 2003 WL 22052872, at *2 (S.D.N.Y.
Sept. 2, 2003) (internal citations omitted).
Service on Viertel Was Not Untimely
Burda attempted service on Viertel pursuant to Fed R. Civ. P. 4(f),
which provides that: Unless otherwise provided by federal law, service
upon an individual from whom a waiver has not been
obtained and filed . . . may be effected in a
place not within any judicial district of the
(1) by any internationally agreed means reasonably
calculated to give notice, such as those means
authorized by the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents . . .
Burda has explicitly relied on the procedures of the Hague Convention to
effect service on Viertel.
In his pro se motion, Viertel argues that service was untimely because
Burda's attorneys did not prepare Form USM-94 until 310 days after the
filing of the complaint. Rule 4(m) requires that service be "made upon a
defendant within 120 days after the filing of the complaint." However, as
acknowledged by Viertel in the brief prepared by his attorney, the 120
day time limit of Rule 4(m) is not applicable to service in a foreign
country under Rule 4(f). See Yellowave Corp. v. Mana, 00 Civ. 2267, 2000
WL 1508249, at *2 (S.D.N.Y. Oct. 11, 2000) ("[T]he 120-day service
requirement does not apply to service in a foreign country."). The
foreign service exemption does not give plaintiffs an unlimited time to
serve defendants, and courts have "use[d] a flexible due diligence
standard to determine whether service of process was timely." Id.
(quoting Travers Tool Co. v. Southern Overseas Express Line, Inc., 98
Civ. 8464, 2000 WL 194781, at *1 (S.D.N.Y. Feb. 17, 2000). Viertel argues, however, that the 120 day limit is appropriate because
"plaintiffs did not even attempt foreign service despite knowledge of
Viertel's address in France at the inception of the action." Viertel's
Mem. in Support of Motion to Vacate Default Judgment at 3 n.7. Where
plaintiffs have not even attempted foreign service, the foreign service
exemption is inapplicable. See Montalbano v. Easco Hand Tools, Inc.,
766 F.2d 737, 740 (2d Cir. 1985). In the instant case, however, Burda has
persuasively shown that its two requests for extensions of the 120-day
time limit were appropriate because it was uncertain at the time whether
service would take place domestically or internationally. While Burda may
have known the address of Viertel's home in Cap Ferrat since 1996, it
does not follow that it knew that Viertel would be present there at the
time Burda sought to effect service. Immediately after attempting service
in New York in September 1997, Burda had been told that Viertel's mail
had been forwarded to an undisclosed address in New Jersey. When Burda
wrote to the Court in January 1998, it suspected that Viertel resided in
France, but also believed it possible that he may have resided in either
Italy or Switzerland. Because Burda has shown due diligence in attempting
foreign service on Viertel, the judgment may not be voided on timeliness
Service on Viertel Was Properly Perfected Under the Hague Convention Viertel argues that service was improper under the Hague Convention
because the French authorities did not complete the required Certificate
of service. Article 6 of the Hague Convention states, in relevant part:
The Central Authority of the State addressed or any
authority which it may have designated for that
purpose, shall complete a certificate in the form of
the model annexed to the present Convention.
The certificate shall state that the document has
been served and shall include the method, the
place and the date of service and the person to
whom the document was delivered. If the document
has not been served, the certificate shall set out
the reasons which have prevented service.
The applicant may require that a certificate not
completed by a Central Authority or by a judicial
authority shall be countersigned by one of these
The certificate shall be forwarded directly to the
In this case, the Certificate that was returned to Burda as part of
the Form USM-94 was left blank. However, the information that should be
included in the Certificate is contained in the police report completed
by Pascal: the date and place of service, the method of service and the
identity of the person to whom the documents were delivered.
The failure to comply strictly with the requirements of the Hague
Convention is not automatically fatal to effective service. "The Hague
Convention carefully articulates the procedure which a litigant must follow in order to perfect service abroad, but it
does not prescribe the procedure for the forum Court to follow should an
element of procedure fail." Fox v. Regie Nationale des Usines Renault,
103 F.R.D. 453, 455 (D. Tenn. 1984). In light of this fact, the Fox court
held that faced with such a situation, the Federal Rules of Civil
Procedure, which "stress  actual notice, rather than strict formalism,"
should be applied in such a situation. Id. (citing Milliken v. Meyer, (
311 U.S. 457, 463 (1940)). The court then noted that:
[t]here is no indication from the language of the
Hague Convention that it was intended to supersede
this general and flexible scheme, particularly where
no injustice or prejudice is likely to result to the
party located abroad, or to the interests of the
affected signatory country. The Hague Convention
should not be construed so as to foreclose judicial
discretion when such discretion needs to be
Id.; see also Ackermann v. Levine, 788 F.2d 830
, 840 (2d Cir. 1986)
("where the [Hague] Convention is silent, federal law should govern where
possible."). Viertel has not alleged that Burda failed to comply with
Hague Convention procedures; any failure of compliance was solely on the
part of the French authorities. Nor has Viertel claimed that he was not
given actual notice of the lawsuit that had been filed against him. Under
similar circumstances, courts have held that:
As a practical matter, where a plaintiff has attempted
in good faith to comply with the Hague Convention, and
where a defendant received sufficient notice despite
the technical defect, it is within a court's discretion to
declare service properly perfected.
Greene v. Le Dorze, CA 3-96-CV-590-R, 1998 WL 158632, at *3 (N.D. Tex.
Mar. 24, 1998); see also Daly v. Llanes, 98 Civ. 196, 1999 WL 1067876
(S.D.N.Y. Nov. 24, 1999) (finding foreign service proper despite the
absence of a returned Certificate where "plaintiff has taken all steps
the he could reasonably be expected to take"); Fox, 103 F.R.D. at 455
(declaring service properly perfected where "plaintiff has, in good
faith, attempted to abide by the provisions of the Hague Convention . .
. "). Viertel therefore may not void the judgment on the grounds that the
French authorities failed to complete the Certificate before returning
the USM-94 to Burda.
Viertel also alleges that a summons was not delivered to him when
Pascal visited his home in Cap Ferrat on August 12, 1998. Viertel has not
denied receiving the complaint. Viertel argues that the failure to
receive a summons violates Fed.R.Civ.P. 4(c)(1) even when the defendant
has actual notice of the lawsuit. Viertel cites caselaw in the domestic
context for this proposition. See, e.g., Bloom v. Democratic Nat'l
Committee, 01 Civ. 11598, 2002 WL 31496272, at *2 (S.D.N.Y. Nov. 6, 2002)
(service held fatally defective because no summons served despite actual
notice of lawsuit by defendant through receipt of complaint); Barron v.
Miami Executive Towers Assocs. Ltd. Partnership, 142 F.R.D. 394, 397
(S.D.N.Y. 1992) ("actual receipt of both the summons and the complaint is a base requirement"). The question of whether actual
receipt of the summons is required under Rule 4, however,
is irrelevant because the United States has made no
declaration or limitation to its ratification of the
Convention regarding Federal Rule 4, or . . .
otherwise regarding . . . service under the
Convention. See Siegel, Practice Commentaries on FRCP
4, reprinted in 28 U.S.C.A. Rule 4 (1985 Cum. Ann.
Pocket Part) at 101 (listing U.S. declarations as to
the Hague Convention). Thus, the Convention
"supplements" and is manifestly not limited by
Rule 4. See id. at 69.
Ackermann v. Levine, 788 F.2d 830
, 840 (2d Cir. 1986); see also Loral
Fairchild Corp. v. Matsushita Elec. Indus. Co., Ltd., 805 F. Supp. 3, 4
(E.D.N.Y. 1992) ("the Second Circuit held that service pursuant to the
Hague Convention need not meet the requirements of Rule 4.").
Viertel has not shown that the requirement of actual receipt of the
summons applies to service pursuant to the Hague Convention. The Ninth
Circuit considered a challenge to service of an Internal Revenue Service
("IRS") summons under the Hague Convention. See Lidas, Inc. v. United
States, 238 F.3d 1076 (9th Cir.), cert. denied 533 U.S. 903 (2001). At
the request of the French tax authorities, the IRS served a notice of
summons on a couple who are citizens of France who permanently reside in
the Congo by 1) sending a copy of the summons "by registered mail to an
address in Nice, France provided to the IRS by the French authorities";
2) sending "a copy of the summons to an address in Lebanon" provided to the IRS by the couple's tax representative; 3)
sending a copy of the summons to the Los Angeles corporation of which the
couple are the sole ultimate shareholders; and 4) sending a copy of the
summons to the couple's tax representative. Id. at 1078-79. "Although the
IRS was apparently notified a number of times that the Congo was the
[couple's] `tax home,' . . . the IRS never mailed a copy of the summons
to the [couple's] Congo address." Id. at 1079.
The couple moved to quash the summons as violative of both the Due
Process Clause of the Fifth Amendment and the Hague Convention. Id. The
Lidas court rejected the Due Process challenge, holding that the IRS had
provided the required "notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the
action." Id. at 1084 (quoting Mullane v. Central Hanover Bank and Trust,
(339 U.S. 306, 314 (1950)). The Lidas court also found that the Hague
Convention had not been violated because the couple had not
called attention to anything in the Hague Service
Convention requiring `actual receipt' of such
notice. In fact, article 10(a) of the Convention
provides that it is not meant to prohibit `the
freedom to send judicial documents, by postal
channels, directly to persons abroad.' Proof of
actual receipt is not required.
Id. (citing Randolph v. Hendry, (50 F. Supp.2d 572, 578 (S.D. W. Va.
1999)). The Ninth Circuit recently reiterated its view that "`actual receipt' is not required under the Hague Convention." Brockmeyer
v. May, 361 F.3d 1222
, 1228 (9th Cir. 2004) (citing the Practical
Handbook on the Operation of the Hague Convention of 15 November 1965 on
the Service Abroad of Judicial and Extraiudicial Documents in Civil or
Commercial Matters (1983)). The holdings of Lidas and Brockmeyer
regarding service under the Hague Convention are persuasive and are
In the instant case, Burda attempted unsuccessfully to serve Viertel by
mail at his residence in France, as permitted by the Hague Convention.
See Ackermann, 788 F.2d at 834. When that failed, Burda attempted
personal service through the French authorities. It is undisputed that
Burda provided the French authorities with a completed Form USM-94 and
copies of the summons and complaint in both French and English. Because
Burda has made every effort to comply with the Hague Convention, service
under the Hague Convention is deemed perfected despite the alleged
absence of receipt of the summons. Further, the service attempted by
Burda was reasonably calculated to apprise Burda of the pendency of this
Even if actual receipt of the summons is required, Viertel's submission
of an affidavit denying receipt of the summons is insufficient to
establish that a summons was not served on him in the face of
considerable evidence to the contrary. In his affidavit, Viertel
acknowledges receiving "two transmission folders" from Pascal, but maintains that the folders contained neither a
summons nor the Form USM-94. The Police Report dated August 12, 1998
references four "Transmission orders," and Viertel's affirmation on the
same document acknowledges receipt of "two files concerning me directly."
While the Police Report and Robert's testimony do not mention the word
"summons," or in French "l'assignation," it is clear that the documents
accepted by Viertel were legal documents coming from a court in New
York. Pascal testified that Viertel accepted "two sets of documents
concerning him directly with his name on it," Tr. at 158-59, and Viertel
acknowledged in his declaration to Pascal "having taken possession of two
files [deux dossiers] concerning me directly." Viertel's claim that the
summons and Form USM-94 was not among these documents is not credible.
Viertel's credibility is further undermined by Viertel's delay of over
two years in notifying the Court of his allegations of insufficiency of
process. See Frankart Distributors, Inc. v. John F. Lawhon Furniture Co.,
85 Civ. 3452, 85 Civ. 3173, 1990 WL 127697, at *2 (E.D.N.Y. Aug. 16,
1990) (bare allegation made over four and one-half years after service
that envelope mailed by processor server was empty held insufficient to
overcome process server's sworn statement that a complaint and summons
had been mailed). Viertel's conviction by a jury on October 2, 2002 on charges of mail fraud, wire fraud and conspiracy is similarly damaging to
Viertel's credibility. The evidence presented demonstrates that Viertel
has based his denial of receipt on the absence in the proof of service of
the exact words "summons" and "Form USM-94," despite strong
circumstantial evidence that those documents were received by Viertel in
August 1998. However, with respect to service on individuals in a foreign
country, including under the Hague Convention, Rule 4(1) provides that
"[f]ailure to make proof of service does not affect the validity of
service." Fed.R.Civ.P. 4(1).
Viertel's Motion for Sanctions is Denied
Viertel has moved for sanctions against Burda, arguing that its conduct
in obtaining the default judgment was in bad faith and was fraudulent. It
has already been determined that Viertel was validly served and that the
default judgment will not be vacated. Viertel also argues that Burda
deliberately misrepresented facts and monetary calculations. Such
allegations are properly raised in a Rule 60(b)(3) motion for relief from
the judgment on the basis of "fraud . . . misrepresentation, or other
misconduct of an adverse party." Fed.R.Civ.P. 60(b)(3). However, as
discussed above, a Rule 60(b)(3) motion is subject to an "absolute"
one-year limitations period, Warren, 219 F.3d at 114, and is therefore
For the reasons set forth above, Viertel's motion for relief from the
judgment under Rule 60(b)(4) is denied. Viertel's motion for relief under
Rules 60(a), 60(b)(2), 60(b)(3), 55(b)(1) and 55(b)(2) is also denied,
as is Viertel's motion for sanctions against Burda.
It is so ordered.
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