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BURDA MEDIA, INC. v. BLUMENBERG

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

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 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 English.

  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 prove

 

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 concern me.
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 log.

  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 folders

 

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 Hague Convention.

 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[2] [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 60(b)(4).
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 United States

 

(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 grounds.

 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 authorities.
The certificate shall be forwarded directly to the applicant.
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 exercised.
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 hereby adopted.

  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 action.

  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 time-barred. Conclusion

  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.

20040518

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