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 ...