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BURDA MEDIA, INC. v. BLUMENBERG

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

OPINION

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.

 Prior Proceedings

  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 companies").

  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 Limited.

  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.

 Facts

  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 ...


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