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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION 

Case No.: 22-cv-24013-RNS 

CHENMING ZHOU, 

Plaintiff, 

v. 

THE INDIVIDUALS, PARTNERSHIPS AND 

UNINCORPORATED ASSOCIATIONS IDENTIFIED 

ON SCHEDULE “A”, 

 Defendants. 

 _______________ / 

DEFENDANTS EMOJITO, HONGKONG YIDARTON TRADING CO. LT, 

YIDADRTON, AND KRISIMIL WALRT FASHION GROCERY’s REPLY TO 

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO SET ASIDE CLERK’S 

DEFAULT 

Defendants, EMOJITO (Def. No. 2), HONGKONG YIDARTON TRADING CO. LT. 

(Def. No. 132), YIDARTON (Def. No. 133) and KRISIMIL WALRT FASHION GROCERY 

(Def. No. 163) (collectively “Defendants”), by and through the undersigned counsel, hereby file 

their Reply to Plaintiff’s Response to Defendants’ Motion to Set Aside the Clerk’s Default and 

state as follows: 

BACKGROUND 

On December 12, 2022, Plaintiff filed its complaint alleging hundreds of defendants, 

including EMOJITO (Def. No. 2), HONGKONG YIDARTON TRADING CO. LT (Def. No. 

132), YIDARTON (Def. No. 133) and KRISIMIL WALRT FASHION GROCERY (Def. No. 

163), were selling products that infringed Plaintiff’s design patent USD955664S1 (hereinafter 

“Plaintiff’s Alleged Patent”). [DE 1]. On February 15, 2023, Plaintiff filed its Motion for Clerk’s 

Entry of Default. [DE 60]. On February 23, 2023, Plaintiff filed the affidavits showing proof of 

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service. [DE 72]. On February 24, 2023, the Clerk entered defaults against the Defendants. [DE 

76]. On May 4, 2023, Defendants filed a Motion to Set Aside Default. [DE 104]. Plaintiff filed a 

response to this Motion on May 18, 2023. [DE 107]. 

ARGUMENT 

Defendants respectfully request that this Honorable Court grant this Motion to Set Aside 

the Clerk’s Default and permit Defendants to file an Answer to the Complaint. 

Pursuant to Federal Rules of Civil Procedure 55 (c), the court may set aside entry of default 

for “good cause.” In determining whether “good cause” has been shown, the courts have 

considered the following: (a) whether the default was culpable or willful; (b) whether setting it 

aside would prejudice the adversary; (c) whether the defaulting party presents a meritorious 

defense; (d) whether there was significant financial loss to the defaulting party; and (e) whether 

the defaulting party acted promptly to correct the default. Compania Interamericana ExportImport, S.A., 88 F 3d 948, 951 (11th Cir. 1996).

As Plaintiff points out, these are factors courts may consider, but are neither limited to nor 

are they required. Id. 

1. Default was not culpable or willful. 

First, Plaintiff pieces together small portions of Annon Consulting, Inc. v. Bionitrogen 

Holdings, Corp., attempting to convince this Court that the “same situation and analysis apply” to 

this case. However, Defendants believe this Court should actually be made aware of the facts of 

that case. 

In Annon Consulting, Inc. v. Bionitrogen Holdings, Corp., the plaintiff filed a complaint 

on January 26, 2015. No. 15-80088-CIV-RYSKAMP/HOPKINS, 2015 U.S. Dist. LEXIS 135080, 

at *3 (S.D. Fla. Sep. 15, 2015). Both parties agreed settlement negotiations were to end on March 

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10, 2015, and the clerk entered default on March 19, 2015. Id. at *5. Thereafter, the defendant did 

not file a motion to set aside the clerk’s default until May 8, 2015. Id. at *5. 

To begin, the timeline of events and settlement negotiations differ significantly between 

this case and Annon Consulting, Inc. In this case, settlement negotiations began on February 7, 

2023, and the Clerk’s Default was entered on February 24, 2023. Importantly, unlike Annon 

Consulting, Inc., Plaintiff continued to reach out to Defendants regarding settlement negotiations 

after the Clerk’s Default was entered. In fact, Plaintiff sent a specific settlement offer to Defendants 

in early-mid March 2023. Although Defendants did not file their Motion to Set Aside Clerk’s 

Default until May 4, 2023, Defendants had a good faith belief settlement negotiations were still 

ongoing. In Annon Consulting, Inc., both parties agreed on when settlement negotiations were to 

end, and the clerk’s default was entered after negotiations closed. However, in this case, 

negotiations were never closed and still ongoing over a month after the Clerk’s Default was 

entered. As such, Defendants believed in good faith that this case would be settled with Plaintiff 

before incurring attorneys’ fees and court costs. See Chunara v. SOL Glob. Invs. Corp., No. 22-

22167-CIV, 2023 U.S. Dist. LEXIS 58226, at *8-9 (S.D. Fla. Apr. 3, 2023) (holding the default 

was not culpable or willful in part because defendants reasonably believed settlement discussions 

were still ongoing). 

Additionally, Plaintiff conveniently fails to disclose how the court in Annon Consulting, 

Inc. analyzed the meritorious defenses raised, finding they were without merit. Id. at *8. The 

district court also determined the plaintiff would be prejudiced based on other creditors asserting 

claims against the defendants. Id. at *11. 

As a result, Plaintiff’s reliance on Annon Consulting, Inc. is facially wrong because the 

facts and timelines of negotiation settlements differ completely, and the court in Annon Consulting, 

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Inc. relied on an abundance of other factors in the plaintiff’s favor to determine that defendant’s 

motion to set aside the clerk’s default was denied. 

Second, Plaintiff baselessly claims Defendants are very “unlikely” to be foreign based and 

describes them as “sophisticated manufacturing and sales companies.” If Defendants were in fact 

large, sophisticated, U.S. based companies, Plaintiff would not have requested alternative service 

and would have served Defendants at their publicly available incorporation addresses. However, 

in reality, Defendants are foreign-based and are not experienced or knowledgeable in dealing with 

the U.S. court system and legal procedures. (See Exhibits A-D). Defendants did not fully 

understand the ramifications for their failure to timely respond to the Complaint, and they believed, 

in good faith, that on-going settlement negotiations were a valid way of addressing this ongoing 

lawsuit. As such, Plaintiff’s baseless claims are unsupported by the circumstances and facts 

surrounding this case. 

 In sum, Plaintiff’s reliance on Annon Consulting, Inc. is misplaced because the timeline 

and facts of that case are patently different than this case. Moreover, Annon Consulting, Inc. relied 

on numerous other factors in determining that defendant’s motion to set aside the clerk’s default 

should be denied. In Annon Consulting, Inc., all of the other factors were in favor of the plaintiff; 

however, none of the other factors, as discussed below, are in favor of Plaintiff in this case. Finally, 

Plaintiff baselessly claims false and misleading facts at an attempt to discount the foreign-based 

Defendants’ good faith negotiations with Plaintiff. However, Defendants are in fact foreign based. 

(See Exhibits A-D). As previously addressed in Defendants’ Motion to Set Aside Default (DE 

104), Defendants did not act in any intentional or reckless disregard for this Court, and Defendants 

did not culpably or willfully default. 

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2. Setting aside default will not prejudice the adversary. 

First, again without any evidence or explanation, Plaintiff claims they will incur “losses 

and damages.” [DE 107]. Plaintiff’s only reasoning for prejudice is that Defendants’ “daily willful 

and continued infringement” will cost the Plaintiff “income, time, and future revenue.” To begin, 

Plaintiff does not explain how any of these loses will actually occur. These are baseless claims 

with no hint of actuality. Moreover, on January 23, 2023, this Court granted a preliminary 

injunction against Defendants. [DE 43]. As such, Plaintiff is not facing daily willful and continued 

infringement that costs the Plaintiff any loss in income, time, or future revenue. 

Second, Plaintiff claims “Defendants should not be entitled to effectively halt judicial 

proceedings.” [DE 107]. However, as previously noted, “delay in adjudicating a plaintiff's claim 

does not qualify as sufficient prejudice under Rule 55...[The plaintiff would have to show] that 

the delay would result in a loss of evidence, increased opportunities for fraud, or discovery 

difficulties.” Griffin IT Media, Inc. v. Intelligentz Corp., No. 07-80535-CIV, 2008 U.S. Dist. 

LEXIS 3384, at *7 (S.D. Fla. Jan. 16, 2008). Plaintiff has failed to address how any delay would 

result in a loss of evidence, increased opportunities for fraud, or discovery difficulties. 

In sum, this Court setting aside the Clerk’s Default will not prejudice Plaintiff. 

3. Defaulting party defenses. 

First, Plaintiff’s response to Defendants’ claim of meritorious defenses is that Defendants’ 

did not raise such defenses in a pleading. However, Plaintiff is facially mistaken about the analysis 

this Court must undertake pursuant to Federal Rule of Civil Procedure 55(c). “For good cause 

shown the court may set aside an entry of default and, if a judgment by default has been entered, 

may likewise set it aside in accordance with Rule 60(b).” Fed. R. Civ. P. 55(c). In this case, no 

judgment has been entered by this Court, so the first clause of Rule 55(c) controls. This Court is 

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to consider “whether the defaulting party presents a meritorious defense.” Defendants have indeed 

presented several, fact supported meritorious defenses. Plaintiff seems to argue that such defenses 

must be plead in an Answer; however, that is the point of Defendants’ Motion to Set Aside Default 

and asking this Court to allow Defendants to file an Answer. 

Second, Plaintiff’s response to Defendants’ claim of meritorious defenses is that 

Defendants’ did provide a sworn statement. A meritorious defense is shown when the moving 

party makes an affirmative showing of a defense that is likely to be successful. In re Worldwide 

Web Systems, Inc., 328 F.3d. 1291, 1296 (11th Cir. 2003). Moreover, “a meritorious defense is 

properly asserted when the movant presents a factual basis for its claim.” Monticello Ins. Co. v. 

Dynabilt Mfg. Co., No. 6:05-cv-548-Orl-19DAB, 2005 U.S. Dist. LEXIS 28398, at *6 (M.D. Fla. 

Nov. 10, 2005); See Turner Broadcasting System, Inc v. Sanyo Electric, Inc., 33 B.R. 996, 1002 

(N.D.Ga. 1983). In this case, Defendants have clearly provided factual basis for their meritorious 

defense claims, evidenced by independent, self-authenticating documentation from the 

USPTO. As previously noted, “the Court's review at this juncture is limited to an inquiry of 

whether Defendant's allegations are entirely devoid of merit.” Griffin IT Media, Inc. v. Intelligentz 

Corp., No. 07-80535-CIV, 2008 U.S. Dist. LEXIS 3384, at *8-9 (S.D. Fla. Jan. 16, 2008). In this 

case, Defendants raise the meritorious defenses of non-infringement, invalidity, and inequitable 

conduct, none of which require a sworn statement by Defendants to raise. The evidence provided 

is self-authenticated. 

Moreover, “a court may also properly consider documents attached to the complaint, 

answer, or motion so long as they are (1) central to the plaintiff's claim, and (2) undisputed. See 

Horsley v. Feldt, 304 F.3d 1125, 1134-1135 (11th Cir. 2002). The exhibits attached to Defendants’ 

Motion to Set Aside the Clerk’s Default are indeed central to Plaintiff’s claims and undisputed 

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based on the lack of any meritorious response by Plaintiff to such defenses. 

In sum, Defendants have properly presented meritorious defenses, none of which Plaintiff 

even responded to, and Defendants have provided independent, self-authenticating evidence to 

support the meritorious defenses. 

4. Financial loss to defaulting party. 

Plaintiff’s only response to this consideration is that “Defendants’ argument that they will 

suffer extreme financial hardship should the clerk’s default stand fails to take into account the 

hardship Plaintiffs face every day.” [DE 107]. Defendants are puzzled by this contention because 

the financial loss of the Defendants need not be concerned with Plaintiff’s hardships or prejudice. 

That is a different consideration, as already addressed above. As previously noted, Defendants will 

indeed suffer extreme financial hardship should the Clerk’s Default stand. In effect, the Clerk’s 

Default grants Plaintiff’s prayer for continued injunctive relief, attorney fees, expenses, and costs. 

As such, Defendants will lose significant money, investments, time, potential inventory and future 

revenue. 

5. Defaulting party acted promptly. 

 Plaintiff’s only response to this consideration is an assertion that Defendants’ Motion to 

Set Aside the Clerk’s Default was “hardly a swift attempt to remedy the default.” [DE 107]. 

Plaintiff, again, does not elaborate on this point. As previously mentioned, Defendants, in good 

faith, relied on the communication from Plaintiff, believing this dispute would be settled. After 

Plaintiff suddenly stopped communicating with Defendants, Defendants acted promptly and filed 

this motion to vacate the Clerk’s Default. See James River Ins. Co. v. SM-Ashley Park, LLC, No. 

3:10-CV-23-J-32TEM, 2010 U.S. Dist. LEXIS 129700, 2010 WL 5092420, at *3 (M.D. Fla. Nov. 

16, 2010) (finding no willful or culpable conduct where defendant responded to default judgment 

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six months after clerk entered default). 

 As a result, Defendants acted promptly to correct the Clerk’s Default and as such, the Court 

should vacate the Clerk’s Default. 

6. Public Policy. 

 “Additional factors that may be considered are whether the public interest was implicated.” 

Singh v. Hopkins Meat Packing, Inc., No. 6:08-cv-1605-Orl-35KRS, 2008 U.S. Dist. LEXIS 

96003, at *4 (M.D. Fla. Nov. 13, 2008). In general, “defaults are seen with disfavor because of the 

strong policy of determining cases on their merits.” Florida Physician's Ins. Co. v. Ehlers, 8 F.3d 

780, 783 (11th Cir.1993). Moreover, the Eleventh Circuit has recognized that “a technical error or 

a slight mistake by a party's attorney should not deprive the party of an opportunity to present the 

merits of his claim.” Id. (citation omitted). Also, “when it is uncertain whether good cause exists, 

courts generally have found it appropriate for trial judges to exercise their discretion in favor of 

setting aside defaults so that cases may be decided on their merits.” Theiss v. Giove Law Office, 

P.C., No. 8:08-cv-356-T-17MSS, 2008 U.S. Dist. LEXIS 44422, 2008 WL 2323911, *3 (M.D. 

Fla. June 5, 2008). 

CONCLUSION 

In sum, Defendants have established good cause for this Court to set aside the Clerk’s 

Default because Defendants did not culpably or willfully default, setting aside the Clerk’s Default 

will not prejudice Plaintiff, Defendants raise meritorious defenses, Defendants would suffer 

extreme financial hardship should the Clerk’s Default stand, Defendants acted promptly to correct 

the Clerk’s Default, and public policy strongly favors the adjudication of this case. 

Indeed, there is no “precise formula for assessing ‘good cause’.” Compania Interamericana 

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Exp.-Imp., S.A. 88 F.3d at 951. Here, Defendants, foreign-based entities, were delayed to 

responding to this lawsuit based on good-faith negotiations with Plaintiff. However, Defendants 

are here now and ready to adjudicate these claims. As seen throughout, Defendants have several 

meritorious defenses that are reasonably certain to prevail. Moreover, Plaintiff is asserting 

intellectual property rights on a statutorily invalid patent. Public policy favors this adjudication, 

and Defendants respectfully request that this Honorable Court grant this Motion to Set Aside the 

Clerk’s Default and permit Defendants to file an Answer to the Complaint. 

DATED May 23, 2023 Respectfully submitted, 

 s/ Benjamin W. Dowers 

Benjamin W. Dowers 

Fla. Bar No.: 91401 

bwd@guntherlegal.com

Gunther Legal, PLLC 

1800 SE 10th Ave, Suite 200 

Fort Lauderdale, FL 33316 

954-556-1487 

Attorneys for Defendants 

EMOJITO, HONGKONG 

YIDARTON TRADING CO. LT, 

KRISIMIL WALRT FASHION 

GROCERY, AND YIDARTON

 

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CERTIFICATE OF SERVICE 

I hereby certify that on May 19, 2023, I certify that the foregoing document is being served 

this day on all counsel of record or pro se parties identified on the attached Service List in via 

email. 

DATED May 19, 2023 Respectfully submitted, 

 s/ Benjamin W. Dowers 

Benjamin W. Dowers 

Fla. Bar No.: 91401 

bwd@guntherlegal.com

Gunther Legal, PLLC 

1800 SE 10th Ave, Suite 200 

Fort Lauderdale, FL 33316 

954-556-1487 

Attorneys for Defendants 

EMOJITO, HONGKONG 

YIDARTON TRADING CO. LT, 

KRISIMIL WALRT FASHION 

GROCERY, AND YIDARTON

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