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Western Supreme Buddha Association Inc. v. Oasis World Peace and Health Foundation

August 30, 2010

WESTERN SUPREME BUDDHA ASSOCIATION INC., WESTERN SUPREME BUDDHA TEMPLE A/K/A WESTERN SUPREME BUDDHA TEMPLE, INC., LUCAS Z. WANG A/K/A MASTER ZIGUANG SHANG SHI A/K/A HOLY ZIGUANG SHANG SHI, CHUN YEE J. WONG A/K/A JENNIE WONG, HSIAOPEI TAN A/K/A BETTY TAN, MIALANA MAK, SUET LEE CHAN A/K/A NAKIE CHAN, YIN YEE LO A/K/A DEVI LO, AND YIK CHENG AIK/A AEOLIAN CHENG, PLAINTIFFS,
v.
OASIS WORLD PEACE AND HEALTH FOUNDATION, OASIS CAPITALS INC., CHANGLIN QIN A/K/A CHARLES QIN, AND MIN ZOU A/K/A HELEN ZOU, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiffs commenced the instant action asserting claims under the Lanham Act, 15 U.S.C. § 1125(a), and under state law sounding in trademark infringement, unfair competition, conversion, and defamation. Before the Court is Plaintiffs' Motion for Default Judgment pursuant to Fed. R. Civ. P. 55(b)(2). Plaintiffs seek damages, costs and attorney's fees, and a permanent injunction.

I. BACKGROUND

Plaintiffs filed their complaint pro se on December 30, 2008. Dkt. No. 1. Summonses were issued on December 30, 2008, Dkt. No. 2, and reissued on January 14, 2009. Dkt. No. 5. Summonses were returned unexecuted upon all four Defendants on February 23, 2009. Dkt. No. 7, 8, 9. Summonses were reissued on March 6, 2009. Dkt. No. 10. Plaintiffs filed a certificate of service upon all Defendants on March 10, 2009. Dkt. No. 11. As demonstrated below, this certificate of service was not legally accurate.

On March 7, 2009, attorney Mark J. McCarthy, Esq., filed a motion on behalf of Defendant Lan Wu a/k/a Helen Wu. Dkt. No. 12. Wu was dismissed from the action shortly thereafter upon stipulation. Dkt. No. 20. On March 30, 2009 the Court granted Plaintiffs an extension to July 1, 2009 to complete service of process upon all Defendants. Dkt. No. 14. Although Attorney McCarthy did not enter a notice of appearance on behalf of the remaining Defendants in the action, Plaintiffs attempted to serve Defendants Oasis World and Oasis Capitals by certified mail to Mr. McCarthy's address on June 23. Dkt. No. 18.

Summonses were reissued on September 8, 2009. Dkt. No. 21. Attorney Arlen L. Olsen, Esq., entered an appearance on behalf of all Plaintiffs on October 30, 2009, and moved for an additional thirty days to serve Defendants, which was granted on November 2, 2009. Dkt. No. 22, 23, 24. Plaintiffs subsequently served summonses on Oasis World Peace and Health Foundation ("Oasis World") and Oasis Capitals, Inc. ("Oasis Capitals") by service on the New York Secretary of State and certified mail to the last known address of the directors of these corporations, Defendants Qin and Zou. Dkt. No. 25, 26.

On December 2, 2009, Plaintiffs requested an extension of time until January 4, 2010 to serve Defendants Qin and Zou, which was granted on December 3, 2009. Dkt. No. 27, 28. On December 15, 2009, Plaintiffs filed affidavits of service on Defendants Qin and Zou. Dkt. No. 29, 30. These affidavits of service attested that the process server served the summonses and complaints upon an attorney purportedly representing Defendants in Canada.

Plaintiffs moved for entry of default on May 17, 2010, and submitted affidavits of service for each defendant. Dkt. No. 32. Plaintiffs' counsel also submitted an affidavit attesting, inter alia, that service of process upon defendants was legally proper. Accordingly, the Clerk of the Court entered Defendants' default on May 18, 2010, pursuant to Fed. R. Civ. P. 55(a). Dkt. No. 33.

Plaintiffs then moved for a default judgment against all Defendants seeking monetary damages, costs and attorney's fees, and a permanent injunction. See Dkt. No. 34. The papers submitted by Plaintiffs in support of their motion are not in the proper form. See General Order #22.*fn1 Plaintiffs' Motion for Default Judgment, Dkt. 34, and their Reply to the Response to the Motion, Dkt. 38, are accompanied by attachments labeled solely by their Exhibit numbers (i.e. "Exhibit 1" etc.), while key documents contained therein, such as Plaintiffs' Memorandum of Law, are not identified with descriptive titles appearing in the Docket Sheet. The Court will not search through these documents looking for evidence to support Plaintiffs' motion, and counsel is forewarned that future violations of General Order #22 will result in rejection of the papers.

On July 12, 2010, Attorney McCarthy submitted opposition on behalf of Defendants Changlin Qin a/k/a Charles Qin ("Qin") and Min Zou a/k/a Helen Zuo ("Zou") to the motion for a default judgment. Dkt. No. 36. The opposition contains an affidavit from these Defendants' Canadian attorney who attests that, while in a Canadian courtroom on an unrelated matter, a process server handed him the summonses and complaints from the instant case. The Canadian attorney attests, however, that he never represented that he was authorized to accept service on behalf of Quin and Zou. Accordingly, Attorney McCarthy contends that service was improper and that, because proper service has not been executed upon Quin or Zou, the Court lacks jurisdiction over these Defendants.*fn2

In Plaintiffs' Reply papers, Dkt. No. 38, although arguing that the Court should ignore Quin and Zou's opposition because the papers were untimely under the Local Rules, Plaintiffs implicitly acknowledge that the Court lacks jurisdiction over Quin and Zou and ask the Court for additional time to perfect service upon these defendants. See Reply, p. 3.

II. DISCUSSION

a. Default Judgment Against Defendants Zou and Qin

The Court lacks personal jurisdiction over Defendants Quin and Zou. Accordingly, the motion for a Default Judgment as to these defendants is DENIED, and the ENTRY of ...


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