IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

MARSHALL DIVISION 

TOUCHPOINT PROJECTION § 

INNOVATIONS, LLC § 

§ 

Plaintiff, § 

 § 

v. § Civil Action No. 2:23-cv-0233-JRG 

 § 

CDNETWORKS CO., LTD, § 

 § 

Defendant. § 

DEFENDANT’S OPPOSED MOTION TO SET ASIDE 

CLERK’S ENTRY OF DEFAULT AND QUASH SERVICE OF PROCESS 

TO THE HONORABLE JUDGE OF SAID COURT: 

 NOW COMES, CDNETWORKS Co., Ltd., Defendant, in the above cause and submits 

this Defendant’s Opposed Motion to Set Aside Clerk’s Entry of Default and Quash Service of 

Process and shows unto the Court as follows, to-wit: 

I. INTRODUCTION AND PROCEDURAL HISTORY 

 On May 26, 2023, Plaintiff Touchpoint Projection Innovations, LLC, (“Plaintiff”) filed a 

complaint for patent infringement against Defendant CDNetworks Co., Ltd., (“Defendant”). [Dkt. 

1]. On July 11, 2023, a summons was issued. [Dkt. 3]. And on July 12, 2023, service of process 

of the complaint and summons was purportedly delivered to the Office of the Texas Secretary of 

State. [Dkt. 4]. 

 On October 5, 2023, Plaintiff requested an entry of default against Defendant from the 

clerk, and, on the same date, the clerk entered the requested entry of default against Defendant. 

[Dkts. 6 and 7]. 

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 Defendant requests that the Court set aside the clerk’s entry of default and quash service 

of process because service of process was not properly effectuated upon Defendant and, therefore, 

the Court does not have personal jurisdiction over Defendant, or, in the alterative, because good 

cause exists to set aside the entry of default. 

II. FACTUAL BACKGROUND 

 Defendant is an organization existing under the laws of South Korea with its principal place 

of business in Seoul, South Korea. (Ex. 1, at ¶ 2). Its registered address is: 7F, 34, Mareunnae-ro, 

Jung-gu, Seoul, South Korea 04555. Id. 

In March of 2023, before Plaintiff initiated this civil action against Defendant, Plaintiff’s 

counsel and Defendant’s counsel exchanged written correspondence concerning Plaintiff’s 

allegation of patent infringement. Id. at ¶ 3. In the written correspondence, Defendant’s counsel 

provided Plaintiff’s counsel with Defendant’s registered address in South Korea, specifically the 

registered address above. Id. The Singapore address that Plaintiff alleges in its Original Complaint 

for Defendant is incorrect. Id; Dkt. 1, at ¶ 3. 

Once Defendant became aware that a default had been entered against it, it intervened to 

request that the entry of default be set aside. (Ex. 1, at ¶ 5). 

III. ARGUMENTS & AUTHORITIES 

Courts favor the resolution of an action on the merits and, thus, in a request to set aside a 

default, will resolve any doubts in favor of the defendant. Garza v. Altaire Pharms, Inc., No. 3:20-

CV-1524-B, 2020 U.S. Dist. LEXIS 168148, at *4 (N.D. Tex. Sept. 14, 2020); Lacy v. Sitel Corp., 

227 F.3d 290, 292 (5th Cir. 2000) (observing that “federal courts should not be agnostic with 

respect to the entry of default judgments which are generally disfavored in the law”); Gen. Tel. 

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Corp. v. Gen. Tel Answering Serv., 277 F.2d 919, 921 (5th Cir. 1960) (“[W]here there are no 

intervening equities any doubt should, as a general proposition, be resolved in favor of the movant 

to the end of securing a trial upon the merits.”). 

If service of process is not properly effectuated upon a defendant, a court must set aside a 

clerk’s entry of default as a matter of law because, in such a situation, the court lacks personal 

jurisdiction over the defendant. Garza, 2020 U.S. Dist. LEXIS 168148, at *4. Thus, when service 

of process is improper, a court has no discretion in the matter. Id. However, a court does have 

discretion and may set aside a clerk’s entry of default if the defendant in the case presents good 

cause. Id.; Fed. R. Civ. P. 55(c). 

a. Service Of Process On A Foreign Defendant 

“In the absence of service of process (or waiver of service by the defendant), a court 

ordinarily may not exercise power over a party the complaint names as defendant.” Blue Spike, 

LLC v. ASUS Comput. Int’l, Inc., No. 6:16-CV-1384-RWS-KNM n, 2018 U.S. Dist. LEXIS 48349, 

at *3 (E.D. Tex. Feb. 18, 2018) (quoting Murphy Bros. v. Michetti Pipe Stringing, 526 U.S. 344, 

350 (1999)). “When a defendant questions the validity of service of process, ‘the plaintiff bears 

the burden of establishing its validity.’” Id. (quoting Henderson v. Republic of Tex. Biker Rally, 

Inc., 672 Fed. Appx. 383 (5th Cir. 2016)). 

Federal Rule of Civil Procedure 4(h) allows for service of process on a foreign corporation 

either (1) in a judicial district of the United States or (2) at a place not within any judicial district 

of the United States. Fed. R. Civ. P. 4(h)(1)-(2); Freedom Pats. LLC v. TCL Elecs. Holding Ltd., 

No. 4:23-CV-00420, 2023 Dist. LEXIS 201545, at *5 (E.D. Tex. 2023). “When exercising the 

first option, service within the United States, the plaintiff must serve the defendant ... in the 

manner prescribed by Rule 4(e)(1) for serving an individual...” Id. “Rule 4(e)(1), in turn, states 

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that ‘unless federal law provides otherwise,’ an individual may be served ‘following state law for 

serving a summons in an action brought in courts of general jurisdiction in the state where the 

district court is located or where service is made.’” Id. (quoting Fed. R. Civ. P. 4(e)(1)). “When 

exercising the second option, service outside the United States, the plaintiff must serve the 

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

delivery under (f)(2)(C)(i).’” Id. at *5-6. (quoting Fed. R. Civ. P. 4(h)(2)). “Under Rule 4(f), a 

plaintiff may serve a defendant ‘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.’” Id. at *6 (quoting Fed. R. Civ. P. 4(f)(1)). 

Section 17 of the Texas Civil Practice and Remedies Code provides “for substituted service 

on the Secretary of State for nonresidents who engage in business in Texas but have neither a 

regular place of business nor a designated agent.” Id. at *7; Tex. Civ. Prac. & Rem. Code § 

17.044(b). Nonresidents under Section 17 includes foreign corporations. Freedom Pats. LLC, 

2023 U.S. Dist. LEXIS 201545, at *7; Tex. Civ. Prac. & Rem. Code § 17.041. 

“Texas law also dictates what the Secretary of State does after service: 

If the secretary of state is served with duplicate copies of process for a nonresident, 

the documents shall contain a statement of the name and address of the 

nonresident’s home or home office and the secretary of state shall immediately mail 

a copy of the process to the nonresident at the address provided.” 

Freedom Pats LLC, 2023 U.S. Dist. LEXIS 201545, at *8 (quoting Tex. Civ. Prac. & Rem. Code 

§ 17.045(a)). 

“[W]hen a signatory to the Hague Convention is served through the Texas Secretary of 

State, the Hague Convention is implicated.” Id. at *12. This is because “the statutory provisions 

allowing [a] [p]laintiff to serve the Texas Secretary of State require the Secretary of State to ‘send

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notice of the complaint to the nonresident.’” Id. at *12-13 (quoting Macrosolve, Inc. v. Antenna 

Software, Inc., No. 6:11-CV-287, 2012 U.S. Dist. LEXIS 208478, at *2 (E.D. Tex. Mar. 16, 

2012)). It is also because “the Certificates of Service issued by the Secretary of State to Plaintiff

include the address of the nonresident defendant where the Secretary sent the Summons and [] 

Complaint.” Id. at *13. 

Courts require a plaintiff to comport with service requirements because a defendant 

deserves due process when served.” Id. “[T]he mailing of the notice of service [by the Secretary 

of State] to the foreign defendant, the “final action” in the chain of events, completes the demands 

of the Due Process Clause.” Id. at *13-14. Therefore, because the actual mailing of the notice is 

both dictated by the Texas service statute and completes the demands of Due Process, the 

international transmission of those documents implicates the Hague Convention. Id. at *14. 

b. South Korea Is A Signatory To The Hague Convention But Does Not Permit 

Service By Mail 

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”). Deep Web, LLC v. Kakao Corp., No. 2:20-CV-00139-JRG-RSP, 2020 U.S. Dist. 

LEXIS 258828, at *4, n. 2 (E.D. Tex. Oct. 3, 2020). South Korea has objected to service by mail 

under Article 10 of 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). Thus, 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. Id. 

c. Plaintiff’s Attempt At Service Of Process Comports Neither With The 

Requirements Of The Hague Convention Nor Due Process 

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Plaintiff attempted to serve process on Defendant by serving the Office of the Texas 

Secretary of State. Dkt. 4. The record in this case is devoid of what happened next, if anything. 

Did the Secretary of State mail anything? If so, to whom and to what address? The record is silent 

concerning those issues. There is no certificate (Whitney certificate) in the record from the Office 

of the Secretary of State, showing that the Office did anything once it received a copy of the 

Summons and Complaint from Plaintiff. 

A certificate from the Secretary of State’s Office detailing the action taken by the Office is 

known as a Whitney certificate because of the Texas Supreme Court case of Whitney v. L&L Realty 

Corp., 500 S.W.2d 94 (Tex. 1973). There, the Texas Supreme Court held that in connection with 

proper service of process upon a defendant through the Secretary of State’s Office, the trial court 

must have a certificate from the Office showing that the Office forwarded a copy of the service to 

the defendant, and without such a showing, a trial court does not have jurisdiction over the 

defendant to enter a default. MC Phase II Owner, L.L.C. v. TI Shopping Ctr., L.L.C., 477 S.W.3d 

489, 492 (Tex.App.—Amarillo 2015, no pet.). “Such a certificate has become known as a Whitney

certificate.” Id. And even though Texas long-arm statute has been revised through the years by 

the Texas legislature since the Whitney court issued its ruling, the Texas Supreme Court has 

continuously required a Whitney certificate from the Office to be in the record for a trial court to 

have jurisdiction over a defaulting party. Id. at 493; See Wachovia Bank of Del., N.A. v. Gilliam, 

215 S.W.3d 848, 850 (Tex. 2007). 

The mailing of the notice of service by the Secretary of State to a foreign defendant, which 

the Freedom Pats court called the “final action” in the chain of events, completes the demands of 

the Due Process Clause. Here, the record is devoid of such a “final action.” Thus, the due process 

requirement has not been met. 

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And, arguendo, even if a Whitney certificate was part of the record in this case, South 

Korea has objected to service by mail under the Hague Convention. Thus, service of process upon 

Defendant via the Secretary of State’s Office cannot be via postal service. Therefore, if, in this 

case, the Whitney certificate showed that the Secretary of State’s Office had mailed service of 

process to Defendant, such service would be improper because it would be in violation of the 

Hague Convention. 

d. This Court Has No Personal Jurisdiction Over Defendant And, Therefore, 

Must Set Aside The Clerk’s Entry of Default 

The lack of a Whitney certificate in the record alone requires this Court to set aside the 

clerk’s entry of default because due process requirements have not been met. Further, the lack of 

adherence to the Hague Convention alone also requires this Court to set aside the clerk’s entry of 

default. Therefore, because service of process has been improper, the Court lacks personal 

jurisdiction over Defendant. As a matter of law, the Court must set aside the clerk’s entry of 

default and quash the service of process upon Defendant. 

In view of the aforementioned, Defendant respectfully requests that the Court set aside the 

clerk’s entry of default and quash the service of process upon Defendant. Alternatively, Defendant 

respectfully requests that the Court set aside the clerk’s entry of default for good cause as discussed 

below. 

e. A Court May Set Aside A Clerk’s Entry Of Default For Good Cause 

Federal Rule of Civil Procedure 55(c) allows district courts to set aside an entry of default 

for “good cause.” Blue Spike, 2018 U.S. Dist. LEXIS 48349, at *23 (citing Lacy, 227 F.3d at 291-

92). “Relief from default is within the discretion of the district court and the Fifth Circuit has 

adopted a policy in favor of resolving cases on their merits and against the use of default 

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judgment.” Id. at *24 (citing Rogers v. Hartford Life and Accident Ins. Co., 167 F.3d 933, 936 (5th 

Cir. 1999)). 

When assessing good cause, “[c]ourts generally consider three factors to determine 

whether to set aside a default: (1) whether the defendant willfully defaulted; (2) whether setting 

aside the default would prejudice the plaintiff; and (3) whether a meritorious defense is presented.” 

Id. 

f. Good Cause Exists Here To Set Aside The Clerk’s Entry Of Default 

i. Defendant Did Not Willfully Default 

Before the filing of the lawsuit, Plaintiff’s counsel and Defendant’s counsel exchanged 

written correspondence, and Defendant’s counsel provided Defendant’s registered South Korean 

address to Plaintiff’s counsel. See Supra Part II. But Plaintiff chose to ignore it and instead use an 

incorrect Singapore address when preparing its Complaint. Id. Moreover, as discussed earlier, the 

record is devoid of whether the Texas Secretary of State’s Office took any action after Plaintiff 

served the Office with the Summons and Complaint. See Supra Part III(c). 

Because Defendant was never properly served with process, it did not believe that it had to 

legally respond to the lawsuit. (Ex 1, at ¶ 5). However, once Defendant became aware that the 

Court was moving forward with a default against it, it has intervened to request that the Court set 

the default aside and quash the service of process. Id. Soon after Defendant learned about the 

clerk’s entry of default, a representative of Defendant in Defendant’s in-house counsel’s office 

located in Asia reached out to the Court to let the Court know that it would intervene to ask the 

Court to set aside the entry of default. Dkt. 8. 

ii. Plaintiff Has Not Been Prejudiced 

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“The Fifth Circuit has consistently held that there is no prejudice to a plaintiff if setting 

aside default merely requires the plaintiff to prove its case.” Blue Spike, 2018 U.S. Dist. LEXIS 

48349, at *25 (quoting Lacy, 227 F.3d at 293). “Prejudice to [a] plaintiff requires more than the 

possibility of prejudice from delay. Id. And prejudice requires more than mere speculation. Id. at 

*27. 

Here, Plaintiff has not been prejudiced. Except for a delay due to Plaintiff’s own making 

(improper service of process), no other issues have arisen or exist that would prejudice the Plaintiff. 

iii. Defendant Has A Meritorious Defense 

“To warrant relief from default, a defendant must demonstrate that it has a meritorious 

defense such that the outcome of litigation could be different if it were allowed to proceed to trial 

on the merits.” Id. (citing In re OCA, Inc., 551 F.3d 359, 373 (5th Cir. 2008)). “[A] defendant 

need not prove that the defense would likely succeed on the merits, but rather establish that there 

is a defense.” Id. 

1. Plaintiff Relies On An Erroneous Website To Support Its 

Infringement Claims 

Plaintiff alleges that Defendant has infringed the patent-in-suit. Dkt. 1. Plaintiff supports 

its infringement claims by alleging that Defendant has committed infringing acts and/or operates 

infringing systems and service as set forth on a website, namely a website having the domain name 

cdnetworks.com. Id. at ¶¶ 63, 66-69. But that website is not owned, registered or operated by 

Defendant. (Ex. 1, at ¶ 6). Because Defendant did not do the acts of which Plaintiff complains, it 

has not infringed the patent-in-suit. 

2. Plaintiff Does Not Have Standing 

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Standing to sue is a threshold question. The party bringing the action bears the burden of 

establishing it. Sicom Systems, Ltd. v. Agilent Technologies, Inc., 427 F.3d 971, 975-76 (Fed. Cir. 

2005). A party’s standing to sue for patent infringement derives from the Patent Act, which 

provides that “[a] patentee shall have remedy by civil action for infringement of his patent.” 35 

U.S.C. § 281; Enovsys LLC v. Nextel Communications, Inc., 614 F.3d 1333, 1341 (Fed. Cir. 2010). 

“Patentee” includes not only the party to whom the patent was issued, but also the successors in 

title to that party, 35 U.S.C. § 100, including those to whom the patent has been assigned 

ownership. Propat International Corp. v. Rpost, Inc., 473 F.3d 1187, 1193 (Fed. Cir. 2007). Thus, 

for a plaintiff to have standing, he must present evidence that he has ownership interest in the 

patent. Sicom Systems, 427 F.3d at 976. 

The Patent Act requires that all assignments of patent rights be in writing. 35 U.S.C. § 261. 

A valid assignment under patent law is “in writing” only if the writing identifies the patent number 

assigned to it by the United States Patent & Trademark Office (“USPTO”), if a patent has issued, 

or identifies the patent application serial number assigned to it by the USPTO, if a patent 

application is pending before the USPTO. 37 CFR § 3.21 (“An assignment relating to a national 

patent application must identify the national patent application by the application number 

(consisting of the series code and the serial number; e.g., 07/123,456)”). 

Here, Plaintiff alleges in its Complaint that it acquired ownership of the patent-in-suit 

through a chain of succession. [Dkt. 1, at ¶ 14]. According to Plaintiff, the inventors of the patentin-suit assigned their entire ownership interest in the patent to Everis, Inc., and then Everis, Inc.,

assigned its entire ownership interest in the patent to Plaintiff. Id. The two inventors of the patentin-suit are a) Joseph McCoy of Frankfort, New York, and b) Joshua White of Ilion, New York. 

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[Dkt. 1-1, at 2]. Further, a provisional patent application relating to the patent-in-suit was filed in 

the USPTO on September 4, 2009 and was assigned Application Serial No. 61/239,989. Id. 

 According to the USPTO, an assignment was purportedly executed on December 10, 

2009, by the two inventors, in which they both assigned their entire interest in the provisional 

patent application to Everis, Inc. (Ex 2-A). When this assignment agreement was purportedly 

executed, the provisional patent application relating to the patent-in-suit was pending before the 

USPTO, but the assignment agreement did not state the patent application serial number therein 

as required by 37 CFR 3.21. Thus, the purported assignment did not comply with the law and, as 

a result, is not considered a writing. Since it is not considered a writing, there cannot be a valid 

assignment. Thus, when Everis, Inc., purportedly assigned the patent-in-suit to Plaintiff, it had 

nothing to assign because it did not own any interest in the patent-in-suit. Because Plaintiff does 

not own any interest in the patent-in-suit, it does not have standing to sue. 

In sum, Defendant has meritorious defenses because Defendant did not commit any of the 

acts that Plaintiff alleges supports its claims for infringement and because Plaintiff does not have 

standing to sue for infringement. 

Defendant has established good cause to set aside the clerk’s entry of default because a) it 

did not willfully default, b) Plaintiff has not been prejudiced and c) it has meritorious defenses. 

Therefore, Defendant respectfully requests that the Court set aside the Clerk’s entry of default. 

In conclusion, because service of process upon Defendant did not comport with either due 

process or the Hague Convention, the Court, as a matter of law, must set aside the clerk’s entry of 

default as the Court does not have personal jurisdiction over the Defendant. However, in the 

alternative, if the Court believe that it does have personal jurisdiction over Defendant, Defendant 

has established that good cause exists to set aside the clerk’s entry of default. 

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PRAYER 

 Defendant respectfully requests that the Court set aside the clerk’s entry of default and 

quash service of process and for such other and further relief that Defendant may be justly entitled at 

law or in equity. 

Respectfully submitted, 

/s/ Aaron P. Peacock 

Aaron P. Peacock 

State Bar No. 24060399 

PEACOCK LAW FIRM PLLC 

4131 N. Central Expressway, Suite 961 

Dallas, Texas 75204 

Telephone: (214) 617-1000 

Facsimile: (214) 617-1010 

Email: apeacock@peacockfirm.com 

ATTORNEY FOR DEFENDANT 

CERTIFICATE OF SERVICE 

The following document was served upon Plaintiff’s counsel, Randall Garteiser, (and all 

parties receiving electronic service) per the local and federal rules of procedure via either 

forwarding same as first-class mail with the United States Postal Service or by causing same to be 

filed in this case via electronic transmission via portable document format (.pdf) to the EM/ECF 

Internet web portal for this Court in this Case on the 28th day of June, 2024. 

/s/ Aaron P. Peacock 

Of Peacock Law Firm PLLC 

CERTIFICATE OF CONFERENCE 

I certify that I have complied with the meet and confer requirement in Local Rule CV-7(h). 

On June 18, 2024, I met and conferred with Plaintiff’s counsel, Randall Garteiser, via telephone 

to discuss the merits of this Motion. Plaintiff’s counsel stated that he is OPPOSED to this Motion 

because of the history of this case. Discussion with Plaintiff’s counsel ended in an impasse, leaving

an open issue for this Court to resolve. Therefore, this Motion is presented to the Court for 

determination. 

/s/ Aaron P. Peacock 

 Of Peacock Law Firm PLLC 

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