United States District Court, D. Colorado
SHO SERVICES, LLC, a Colorado limited liability company, Plaintiff,
CHINA FILM GROUP CORPORATION, a China corporation, Defendant.
ORDER GRANTING MOTION TO SET ASIDE DEFAULT
CHRISTINE M. ARGUELLO JUDGE
matter is before the Court on Defendant China Film Group
Corporation's Motion to Set Aside Default Judgment. (Doc.
# 44.) Plaintiff SHO Services, LLC filed a Response (Doc. #
49) on June 3, 2019, and Defendant filed a Reply (Doc. # 51)
on June 17, 2019. For the following reasons, the Court grants
is a Colorado-based security, crowd safety, and management
company that provides safety consulting and management
designed for live entertainment environments, including
evacuation plans, emergency procedure plans, public safety
coordination, and budgeting compliance. (Doc. # 1 at 2.)
Defendant is a film enterprise in the People's Republic
of China. (Id. at 1.) This case arises from a
contract dispute regarding services that Plaintiff alleges to
have performed for Defendant without receiving compensation.
September 8, 2017, Magistrate Judge Mix issued an order which
directed Plaintiff to file a status report regarding its
efforts to serve Defendant. (Doc. # 11 at 1.) Accordingly, on
September 18, 2017, Plaintiff filed a Status Report which
indicated that it had “engaged a company that
specializes in serving foreign companies with service of
process . . . in U.S. lawsuits in accordance with the Hague
Convention, ” although it was “unknown exactly
how long it will take for the Chinese Central Authority to
accept the papers and effectuate service, but Plaintiff [was]
informed that it is likely to take several months if not
longer.” (Doc. # 13 at 1.) Plaintiff also reported that
“Defendant has several agents that work in the U.S. and
appear at events, and Plaintiff has attempted to serve those
agents and will continue to do so this Fall [sic].”
(Id. at 2.)
on November 13, 2017, Plaintiff filed an Affidavit of
Service, which indicated that Plaintiff had served an
individual named Maio Xiaotian in Los Angeles, CA. (Doc. # 14
at 1.) Mr. Ziaotian is the president of an entity called
China Film Co-Production Corporation (“CFCC”),
which is a subsidiary of Defendant. (Doc. # 16 at 2- 3.)
Plaintiff asserted that service was proper because Mr.
Xiaotian is a “managing or general agent” of
Defendant. (Id. at 3.) Defendant did not file an
answer or otherwise respond.
on February 13, 2018, Plaintiff filed a Motion for Entry of
Default and Default Judgment. (Id.) Thereafter, the
Clerk of the Court issued an Entry of Default, and this Court
issued a Default Judgment Order against Defendant on May 11,
2018. (Doc. ## 18, 26.) However, on February 11, 2019,
Defendant filed a document titled, “The Responses to
the Lawsuit Filed by SHO Services, LLC Against China Film
Group Corporation.” (Doc. # 40.) The document appears
to be an Answer, and it indicates that Defendant received
notice of this case on January 4, 2019. (Id.)
Defendant filed the instant Motion to Set Aside Default
Judgment on May 13, 2019. (Doc. # 44.) Defendant included the
affidavits of Shang Zhe, Defendant's “Head of
Legal, ” and Mr. Xiaotian in support of its Motion. Mr.
Xiaotian states that he was never served with process while
he was in Los Angeles during the fall of 2017, and Shang Zhe
indicates that Defendant and CFCC are, in fact, separate
STANDARD OF REVIEW
Rule of Civil Procedure 60(b)(4) provides that a court
“may relieve a party or its legal representative from a
final judgment . . . [if] the judgment is void.”
Further, the Tenth Circuit has held that “[w]here Rule
60(b)(4) is properly invoked, ‘relief is not a
discretionary matter; it is mandatory . . . .'”
Hukill v. Oklahoma Native Am. Domestic Violence
Coal., 542 F.3d 794, 797 (10th Cir. 2008) (quoting
Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir.
1994)); see also Glob. Gold Mining, LLC v. Ayvazian,
983 F.Supp.2d 378, 384 (S.D.N.Y. 2013) (“Rule 60(b)(4)
is ‘unique' because ‘relief is not
discretionary and a meritorious defense is not
necessary.'” (quoting Covington Indus. v.
Resintex A.G., 629 F.2d 730, 733 n.3 (2d Cir. 1980))).
here, “a default judgment in a civil case is void if
there is no personal jurisdiction over the defendant.”
Hukill, 542 F.3d at 797 (citation omitted).
Importantly, “service of process [under Fed.R.Civ.P. 4]
provides the mechanism by which a court . . . asserts
jurisdiction over the person of the party served.”
Id. (citation omitted). Therefore, “a judgment
obtained by way of defective service is void for lack of
personal jurisdiction and must be set aside as a matter of
law.” Chettri v. Nepal Bangladesh Bank, Ltd.,
No. 10 CIV. 8470 PGG, 2014 WL 4354668, at *5 (S.D.N.Y. Sept.
2, 2014) (citation omitted), aff'd sub nom. Chettri
v. Nepal Rastra Bank, 834 F.3d 50 (2d Cir. 2016).
argues that the default judgment in this case (Doc. # 27)
should be set aside based on defective service. Specifically,
Defendant argues that effecting service on Defendant's
subsidiary did not constitute service on Defendant. The Court