UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Mosaic Technology Corporation

v. Civil No. 05-cv-043-JM

Internet Now Technologies, LTD

O R D E R

 Defendant moves to vacate the default judgment entered

against it. 

Background

The complaint was filed on February 8, 2005. By letter of

February 8, 2005 defendant’s CEO (Ruiz) and CFO (Kaplan) were

mailed copies of the complaint but were not served under Fed. R.

Civ. P. 4. Efforts continued to resolve the dispute over the

next two and one-half months. On April 27, 2005, service of the

summons and complaint was made on defendant’s CEO by certified

mail. The receipt was signed by Colleen Santiago who by

affidavit says she gave the materials to Mr. Ruiz. 

On April 28, 2005, service was made on defendant’s appointed

agent for service of process. Defendant failed to file an

answer. On June 3, 2005 the clerk entered default and directed

plaintiff to submit its motion for default judgment. On June 15,

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2005, pursuant to LR 55.1(a) plaintiff mailed a notice of default

to defendant, to defendant’s agent for service of process and to

personal counsel of each of the corporate principals. The motion

for entry of default judgment was mailed to the same group on

July 6, 2005. Judgment was entered on July 15, 2005. On the

same day the very next docket entry is the motion to vacate

default. 

Discussion

The First Circuit’s view is that “(b)ecause Rule 60(b) is a

vehicle for ‘extraordinary relief’ motions invoking the rule

should be granted ‘only under exceptional circumstances.’” 

Davila-Alvarez v. Escuela de Medicina, 257 F.3d 58, 63-4 (1st

Cir. 2001). The test has four parts: 

To succeed on a Rule 60(b) motion, the movant

must show that (1) the motion is timely, (2)

exceptional circumstances justify granting

extraordinary relief, and (3) vacating the

judgment will not cause unfair prejudice to

the opposing party. In addition, the movant

must show that granting the motion will not

be an “empty gesture” by demonstrating that

the underlying claim for relief (or defense)

is likely to succeed on the merits. 

Caisse v. DuBois, 346 F.3d 213, 215 (1st Cir. 2003) (citations

omitted). The rule itself references mistake and excusable

neglect. 

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First, there is no doubt that service was made. Ignoring

all other service the service on the registered agent was made

and defendant is bound by it. Given the proximity of default

judgment and the filing of the motion, timeliness and prejudice

are not issues. The “empty gesture”, however, looms large. 

Counsel baldly asserts that defendant has viable and

meritorious defenses. However, there is not one word in

defendant’s motion or memorandum or Mr. Kaplan’s affidavit to

support that assertion. The assertion, by itself, is

insufficient to demonstrate any likelihood of success on the

merits. In fact, plaintiff has submitted the affidavit of

defendant’s CEO showing that defendant owes the judgment. 

The motion (document no. 14) is denied. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: August 19, 2005

cc: David P. Eby, Esq.

 Robert E. McDaniel, Esq.

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