IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

TOUCHPOINT PROJECTION 

INNOVATIONS, LLC,

Plaintiff,

v. 

CDNETWORKS CO., LTD.,

Defendant.

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CIVIL ACTION NO. 2:23-CV-00233-JRG

MEMORANDUM OPINION AND ORDER

Before the Court is the Motion to Set Aside Default and Quash Service of Process (the 

“Motion”) filed by CDNetworks Co., Ltd. (“CDNetworks” or “Defendant”). (Dkt. No. 10.) 

I. BACKGROUND

In March of 2023, counsel for Touchpoint Projection Innovations, LLC (“Touchpoint” or 

“Plaintiff”) exchanged written correspondence with counsel for CDNetworks, whereby 

CDNetworks provided Plaintiff with its registered address. (Dkt. No. 10-1 at ¶ 3.) Specifically, 

CDNetworks provided that its registered address was: 7F, 34, Mareunnae-ro, Jung-gu, Seoul, 

South Korea 04555. (Dkt. No. 10-1 at ¶ 2.) 

On May 26, 2023, Touchpoint filed this patent infringement lawsuit against CDNetworks. 

(Dkt. No. 1.) In its Complaint, Touchpoint stated “[o]n information and belief” that Defendant 

was a corporation organized with its principal place of business at Winsland House I, 3 Killiney 

Road, #04-05, Singapore 239519. (Dkt. No. 1.) Touchpoint then attempted to serve CDNetworks 

by “[s]ervice via the Texas Secretary of State at 1019 Brazos, Austin, TX 78701 on July 12, 2023, 

with affidavit of service filed at Dkt. 4.” (Dkt. No. 6-1 at 1; Dkt. No. 4.) 

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On October 5, 2023, Touchpoint requested entry of default against CDNetworks with the 

clerk of the court, whereby Touchpoint swore therein that CDNetworks “failed to plead or 

otherwise defend herein as provided by the Federal Rules of Civil Procedure.” (Dkt. No. 6 at 1; 

Dkt. No. 6-1.) Touchpoint also filed an “Affidavit in Support of Clerk’s Entry of Default” 

certifying that Defendant “failed to serve an answer or other responsive pleading.” (Dkt. No. 6-1 

at 1.) In that affidavit, Touchpoint stated that CDNetworks was served “via the Texas Secretary 

of State at 1019 Brazos, Austin, TX 78701 on July 12, 2023, with affidavit of service filed at Dkt. 

4.” (Dkt. No. 6-1 at 1.) The Clerk of the Court entered the Entry of Default on October 5, 2023. 

(Dkt. No. 7.)

On April 9, 2024, CDNetworks contacted the Court via an email contesting service. (Dkt. 

No. 9). In an effort to follow up with the Court, CDNetworks then engaged local counsel and filed 

this Motion on June 28, 2024. (Dkt. No. 10.). 

On July 11, 2024, Touchpoint filed an “Unopposed Motion for Time to Respond to 

CDNetworks’ Motion to Set Aside Default,” whereby it requested a 14-day extension up to July 

26, 2024, which the Court granted on July 17, 2024. (Dkt. No. 11; Dkt. No. 12.) Touchpoint did 

not file a response to the Motion by the Court’s deadline. (See Dkt.) Without leave of Court, 

Touchpoint then filed its “Response in Support of CDNetworks’ Motion to Set Aside Default” on 

August 8, 2024, whereby Touchpoint “join[ed]” Defendant’s Motion. (Dkt. No. 13.) On August 

12, 2024, CDNetworks filed its Opposed Motion to Strike Document No. 13 on the grounds that 

Touchpoint’s response was untimely.1

1

 CDNetworks argues in its Motion to Strike that Plaintiff’s Response in Document No. 13 was not only untimely, 

but that Plaintiff’s representation to Court that a meet-and-confer occurred were also “completely false.” (Dkt. No. 

14.) The Court notes that Touchpoint offers no excuse for its untimely response but continues to assert that service 

was proper such that the default against CDNetworks for not answering the Complaint should stand. (Dkt. No. 13.) 

The Court has discretion to strike an untimely response. Hutton v. Bank of N.Y. Mellon Tr. Co., N.A., 847 F. App’x 

252, 253 (5th Cir. 2021). The Court finds that the Motion to Strike Document No. 13 is hereby and should be 

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II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 55(c), a court has discretion to set aside an entry of 

default where there is “good cause.” Fed. R. Civ. P. 55(c). Even in the absence of “good cause,” 

however, the district court “must set aside the clerk of court’s entry of default as a matter of law” 

if the court lacks personal jurisdiction over the defendant due to improper service of process. 

Garza v. Altaire Pharm., Inc., No. 3:20-CV-1524-B, 2020 U.S. Dist. LEXIS 168148, at *4 (N.D. 

Tex. 2020); see also Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 940 (5th Cir. 

1999) (“When a district court lacks jurisdiction over a defendant because of improper service of 

process, the default judgment is void and must be set aside.”). 

A. Courts may set aside entry of default when the “good cause” requirement is 

satisfied. 

Good cause “is not susceptible of precise definition, and no fixed, rigid standard can 

anticipate all of the situations that may occasion the failure of a party to answer a complaint 

timely.” In re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992). Thus, the “good cause” standard is 

liberally construed. Effjohn Int’l Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d 552, 563 (5th 

Cir. 2003). Generally, to determine whether a defendant has shown good cause under Rule 55(c), 

a court should consider the following factors: (1) whether the default was willful; (2) whether the 

plaintiff would be prejudiced; and (3) whether the defendant presents a meritorious defense. 

Dierschke, 975 F.2d at 184. The court need not consider all of these factors. CJC Holdings, Inc. 

v. Wright & Lato, Inc., 979 F.2d 60, 64 (5th Cir. 1992). Nevertheless, the Court favors resolving 

actions on the merits and therefore will resolve any doubts in favor of the defendants. See Lacy v. 

Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000). Ultimately, “[t]he decision to set aside a default 

GRANTED. With no response from Touchpoint on the record, the Court accepts CDNetworks’ factual allegations 

in its Motion as undisputed. See Hutton, 847 F. App’x 252 at 253. 

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decree lies within the sound discretion of the district court.” United States v. One Parcel of Real 

Prop., 763 F.2d 181, 183 (5th Cir. 1985). 

B. Courts must set aside entry of default when the court lacks personal

jurisdiction due to improper service. 

Nonetheless, even in the absence of “good cause,” the court “must set aside the clerk of 

court’s entry of default as a matter of law” if the district court lacks personal jurisdiction over the 

defendant due to improper service of process. Garza v. Altaire Pharm., Inc., No. 3:20-CV-1524-

B, 2020 U.S. Dist. LEXIS 168148, at *4 (N.D. Tex. 2020). “[O]nce the validity of service of 

process has been contested, the plaintiff bears the burden of establishing its validity.” Henderson 

v. Republic of Tex. Biker Rally, Inc., 672 F. App’x 383, 384 (5th Cir. 2016) (quoting Carimi v. 

Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992)). Typically, a plaintiff 

may satisfy this burden by “producing the process server’s return of service, which is generally 

accepted as prima facie evidence of the manner in which service was effected.” Nabulsi v. Nahyan, 

2009 U.S. Dist. LEXIS 49661, at *4 (S.D. Tex. June 12, 2009), aff’d, 383 Fed. App’x 380 (5th 

Cir. 2010) (per curiam).

C. Federal Rule of Civil Procedure 4(h) governs service on foreign corporations.

Federal Rule of Civil Procedure 4 governs service of process. Subsection (h) of Rule 4

allows a foreign business entity to be served: 

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, 

a managing or general agent, or any other agent authorized by appointment 

or by law to receive service of process and—if the agent is one authorized 

by statute and the statute so requires—by also mailing a copy of each to the 

defendant; or

(2) in any manner prescribed by Rule 4(f) for serving an individual, except personal 

delivery under (f)(2)(C)(i).” 

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Fed. R. Civ. P. 4(h). Under Rule 4(h)(2), service of process of an individual in a foreign country 

may be served: 

(1) by any internationally agreed means of service that is reasonably calculated to 

give notice, such as those authorized by the Hague Convention on the Service 

Abroad of Judicial and Extrajudicial Documents;

(2) if there is no internationally agreed means, or if an international agreement 

allows but does not specify other means, by a method that is reasonably calculated 

to give notice: 

(A) as prescribed by the foreign country’s law for service in that country in 

an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of 

request; or

(C) unless prohibited by the foreign country’s law, by: . . .2

(ii) using any form of mail that the clerk addresses and sends to the 

individual and that requires a signed receipt; or

(3) by other means not prohibited by international agreement, as the court orders.” 

Fed. R. Civ. P. 4(f)(1)-(3); see also Deep Web, LLC v. Kakao Corp., 2020 U.S. Dist. LEXIS 

258828, *3 (E.D. Tex. Oct. 3, 2020).

The United States and South Korea are both signatories to the Convention on Service 

Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague 

Convention”). Moreno v. Allison Med., Inc., No. 3:20-cv-00300, 2022 U.S. Dist. LEXIS 155064, 

at *9 (S.D. Tex. Aug. 9, 2022); see also HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW 

(HCCH), Member: Republic of Korea, https://www.hcch.net/en/states/hcchmembers/details1/?sid=48 (last visited August 14, 2024). The Hague Convention allows a plaintiff 

to effect service of process on a foreign individual in several ways. Moreno, 2022 U.S. Dist. 

LEXIS 155064, at *8. The most common method is service through a “central authority,” an entity 

2 The Court omits Federal Rule of Civil Procedure 4(f)(2)(C)(i) because 4(h)(2) explicitly prohibits this method for 

service on foreign corporations. 

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each signatory country must establish to receive requests for service of documents from other 

countries. Id. at *9. Once a central authority receives a request in the proper form, it must serve 

the documents. Id. When service is completed, the central authority returns a completed 

Certificate of Service to the party that requested service. See Hague Convention, art. 6; Water 

Splash, Inc. v. Menon, 581 U.S. 271, 275 (2017) (“When a central authority receives an 

appropriate request, it must serve the documents or arrange for their service, Art. 5, and then 

provide a certificate of service, art. 6.”). 

When a signatory to the Hague Convention is served through the Texas Secretary of State, 

the Hague Convention is implicated. Freedom Pats. LLC v. TCL Elecs. Holding Ltd.., Civil Action 

No. 4:23-cv-00420, 2023 U.S. Dist. LEXIS 201545, at *12-13 (E.D. Tex. Nov. 9, 2023). The

statutory provisions for service via the Texas Secretary of State requires the Secretary of State to 

“send notice of the complaint to the nonresident.” Id. The Certificates of Service issued by the 

Secretary of State back to the plaintiff will include the address of the nonresident defendant where 

the Secretary sent the Summons and Original Complaint. Id. at *13.

South Korea, however, has objected to service by mail under Article 10 of the Hague 

Convention. Moreno, 2022 U.S. Dist. LEXIS 155064, at *8. Courts have found that service of 

foreign corporate defendants through the Texas Secretary of State is not permissible where the 

signatory to the Hague Convention expressly objects to service. See, e.g., 

Freedom Pats., 2023 U.S. Dist. LEXIS 201545, at *15-16 (finding that service on foreign 

defendants organized and existing in the People’s Republic of China via the Texas Secretary of 

State is not permissible because the People’s Republic of China is a signatory to the Hague 

Convention, and it expressly objects to service by mail). 

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As a result, to properly serve a nonresident defendant in South Korea through the Hague 

Convention, service must be through the Central Authority in South Korea as set forth in the Hague 

Convention. While other methods of service may be available, the plaintiff bears the burden of 

establishing its validity once service of process has been contested. Henderson v. Republic of Tex. 

Biker Rally, Inc., 672 F. App’x 383, 384 (5th Cir. 2016).

III. DISCUSSION

In its Motion, CDNetworks requests that the Court set aside the entry of default and quash 

service of process because it was not properly served and also find that the Court does not have 

personal jurisdiction over it. (Dkt. No. 10 at 2.) Since CDNetworks has properly challenged 

service of process, Touchpoint bears the burden of establishing the validity of service of process. 

See Henderson, 672 F. App’x at 384. Based on what is before it, the Court finds that Touchpoint 

has not met its burden of establishing the validity of service of process in this case. 

As a preliminary matter, CDNetworks is correct when it represents that while Touchpoint 

attempted to serve process on it by serving the Office of the Texas Secretary of State, the record 

in this case is “devoid of what happened next, if anything.” (Id. at 6.) Here, the Affidavit of 

Service issued by the Texas Secretary of State and returned to Touchpoint (Dkt. No. 4.) does not 

include the registered address of the nonresident defendant where the Summons and Original 

Complaint were sent. See, e.g., Freedom Pats, 2023 U.S. Dist. LEXIS 201545, at *12-13 (E.D. 

Tex. Nov. 9, 2023) (“The Certificates of Service issued by the Secretary of State back to the 

plaintiff will include the address of the nonresident defendant where the Secretary sent the 

Summons and Original Complaint.”); see also Duarte v. Michelin N. Am., Inc., 2013 U.S. Dist. 

LEXIS 73862, at *5, 8 (S.D. Tex. May 3, 2013) (“After service in compliance with [Texas 

Business Organizations Code] § 5.252, the secretary of state immediately sends one of the copies 

of the process, notice or demand to the named entity by certified mail, return receipt requested. . 

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. . Because the secretary of state must send copies of the documents to Japan in order for defendants 

to have notice of the lawsuit and for the court to have jurisdiction over them, the Hague convention 

applies.”). Touchpoint has pointed to no authority stating that service upon the Texas Secretary 

of State, without more, suffices for service upon a foreign corporation.

Additionally, Touchpoint has neither provided evidence that the South Korea Central 

Authority returned a completed Certificate of Service or that Korea allows alternative methods of 

service beyond the Hague Convention, such as by service through the Texas Secretary of State.

The Court concludes that Touchpoint has not met its burden to establish the validity of 

previous service on CDNetworks. Since Touchpoint has failed to establish the validity of service 

on CDNetworks, the Court need not address CDNetworks’ alternative argument that good cause 

exist to set aside entry of default. (Dkt. No. 10 at 2.). 

IV. CONCLUSION

For the reasons expressed in this Order, the Court finds that the Motion should be 

GRANTED. Accordingly, the Court ORDERS that the Clerk’s Entry of Default be SET ASIDE,

and that Plaintiff properly and forthwith serve Defendant under the Hague Convention. Failure to 

affect such proper service and otherwise prosecute this action diligently may cause the Court in 

the future to require Plaintiff to show cause why this action should not be dismissed. Additionally,

CDNetworks’ Motion to Strike Document 13 (Dkt. 14) is also GRANTED.

.

____________________________________

RODNEY GILSTRAP

UNITED STATES DISTRICT JUDGE So ORDERED and SIGNED this 30th day of August, 2024.

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