OpenClinica, LLC v. Evidilya, S.R.L.

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
OPENCLINICA, LLC,
Plaintiff,
v.
EVIDILYA, S.R.L.,
Defendant.
No. 24-cv-11555-DLC
MEMORANDUM AND ORDER ON DEFENDANT EVIDILYA, S.R.L.’S
MOTION TO SET ASIDE ENTRY OF DEFAULT
CABELL, U.S.M.J.
In 	this 	breach 	of 	contract 	dispute, 	the 	plaintiff
OpenClinica, LLC (the plaintiff), a company that licenses software
and 	provides 	related 	services 	to 	conduct 	clinical 	trials,
maintains that the defendant Evidilya, S.R.L. (the defendant), an
Italian 	company 	which 	coordinates 	clinical 	studies, 	breached 	a
Master 	Subscription 	Agreement 	(the 	Master 	Agreement).
Specifically, the defendant reportedly failed to pay the plaintiff
for certain services or failed to pay in a timely manner.
In 	April, 	the 	plaintiff 	filed, 	and 	the 	court 	allowed, 	the
plaintiff’s 	motion 	to 	enter 	a 	default. 	(D. 	16, 	17). 	Presently
pending 	before 	the 	court 	is 	the 	defendant’s 	motion 	to 	set 	aside
the entry of default. 	(D. 22).
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The 	defendant 	argues 	that 	the 	default 	was 	not 	wilful 	due 	to
its 	limited 	financial 	resources, 	unfamiliarity 	with 	the 	United
States legal system, and foreign location. 	The plaintiff responds
that 	ignorance 	of 	the 	law 	does 	not 	constitute 	excusable 	neglect
and it is illogical for the defendant to believe, as it initially
did, 	that 	it 	could 	defend 	itself 	without 	an 	attorney. 	Next,
because a meritorious defense weighs in favor of lifting the entry
of default, the defendant points to several such defenses. 	These
include 	a 	forum 	selection 	clause 	in 	the 	Master 	Agreement
purportedly 	requiring 	that 	the 	plaintiff 	file 	suit 	in 	a
Massachusetts 	state 	court 	as 	opposed 	to 	a 	federal 	court 	in
Massachusetts. 	The 	plaintiff 	disagrees 	and 	maintains 	that 	the
forum selection clause does not render venue improper particularly
where, as here, jurisdiction is premised on diversity.
For reasons that follow, the motion to set aside the default
(D. 	22) 	will 	be 	allowed. 	Separately, 	the 	parties 	are 	instructed
to 	brief 	whether 	this 	case 	satisfies 	the 	$75,000 	threshold 	for
diversity jurisdiction.
I. 	LEGAL STANDARD
“When a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend, and the failure
is shown by affidavit, the clerk must enter the party’s default.”
Fed. 	R. 	Civ. 	P. 	55(a). 	Once 	a 	default 	is 	entered, 	the 	court 	can
issue 	a 	default 	judgment 	to 	a 	party 	that 	moves 	for 	one. 	Fed. 	R.
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Civ. P. 55(b). 	Courts may set aside an entry of default for “good
cause.” 	Fed. R. Civ. P. 55(c).
II. 	BACKGROUND
The plaintiff filed this action on June 14, 2024.1 	The three-
count 	complaint 	sets 	out 	claims 	for 	breach 	of 	contract, 	quantum
meruit, and promissory estoppel.
Because 	the 	defendant 	is 	a 	foreign 	company 	based 	in 	Milan,
Italy, 	the 	plaintiff 	needed 	to 	serve 	the 	defendant 	in 	accordance
with 	the 	Hague 	Convention.2 	The 	plaintiff 	represents, 	and 	the
defendant does not dispute, that that the Italian Central Authority
required 	Italian 	translations 	of 	the 	service 	documents. 	The
plaintiff obtained translations on September 18, 2024. 	(D. 23).
On 	November 	1, 	the 	plaintiff 	mailed 	the 	documents 	to 	the
Italian 	Central 	Authority. 	(D. 	23). 	On 	February 	6, 	2025, 	the
plaintiff served the defendant. 	(D. 14) (D. 22-2, ¶ 5). 	On March
1 Previously, in October 2023, the plaintiff purportedly advised the defendant
in a settlement demand that if the dispute did not resolve, the defendant would
be subject to the jurisdiction of Massachusetts courts.
2 “The Hague Convention provides means by which to serve process on a foreign .
. .corporation[.] 	Am. Well Corp. v. Indegene Ltd., 761 F.Supp.3d 249, 261 (D.
Mass. 2024) (internal brackets omitted); Hague Convention on the Service Abroad
of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov.
15, 1965, 658 U.N.T.S. 163 (“Hague Convention”). 	“If service is sought on a
defendant in a country that is party to the [Hague Convention], compliance with
the Convention’s provisions is mandatory.” 	Study Smarter LLC v. StudySmarter
UG, Case No.: 22cv471-LL-BGS, 2022 WL 2670649, at *1 (S.D. Cal. July 11, 2022)
(citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988)).
“Italy is a party to the [Hague Convention].” 	Brown v. Dolce & Gabbana USA
Inc., 24 Civ. 3807 (NRB), 2025 WL 1919549, at *3 (S.D.N.Y. July 11, 2025). 	“The
primary means” to accomplish service under the Hague “Convention is through the
receiving country’s Central Authority.” 	Study Smarter, 2022 WL 2670649, at *1
(emphasis added).
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3, 	the 	defendant 	sought 	an 	extension 	of 	time 	to 	respond 	to 	the
complaint 	and 	to 	electronically-file 	documents 	pro 	se 	based 	on
communications 	with 	the 	CM/ECF 	help 	desk.3 	(D. 	13) 	(D. 	22-2, 	¶
6). 	On 	March 	17, 	the 	court 	denied 	the 	motion 	because 	Local 	Rule
83.5.5 prohibits companies from appearing pro se. 	(D. 15).
Given 	the 	ruling, 	it 	was 	only 	then 	that 	the 	defendant
understood 	it 	needed 	to 	retain 	an 	attorney 	licensed 	to 	practice
law before this court. 	The defendant’s naiveté is understandable.
It 	has 	never 	been 	involved 	in 	a 	lawsuit 	in 	the 	United 	States 	and
was 	unfamiliar 	with 	the 	legal 	system. 	As 	a 	practical 	matter, 	it
needed 	to 	raise 	sufficient 	funds 	to 	secure 	legal 	representation
given the company’s limited financial resources. 	(D. 22-2, ¶ 8).
On June 24, counsel filed a notice of appearance on behalf of
the defendant. 	(D. 20). 	The defendant thereafter filed the motion
to set aside the default on July 11.
To 	date, 	neither 	party 	has 	filed 	a 	copy 	of 	the 	Master
Agreement. 	The 	parties 	nevertheless 	acknowledge 	that 	the
agreement contains a forum selection clause. 	Further, they agree
that 	the 	clause 	designates 	the 	courts 	“of 	the 	Commonwealth 	of
Massachusetts.” 	(D. 23) (the plaintiff’s opposition stating “the
forum selection clause . . . designates courts ‘of the Commonwealth
of 	Massachusetts’”); 	(D. 	22-2, 	¶ 	12) 	(affidavit 	statement 	by 	the
3 The plaintiff assumes that help desk personnel would have informed the
defendant that it could not proceed pro se. 	(D. 23).
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defendant’s 	Managing 	Partner 	that 	forum 	selection 	clause
“designates 	courts 	‘of 	the 	Commonwealth 	of 	Massachusetts’”); 	see
also 	(D. 	22-1) 	(the 	defendant’s 	memorandum 	representing 	Master
Agreement 	states 	it 	“will 	be 	governed 	by 	. 	. 	. 	. 	the 	laws 	of 	the
Commonwealth of Massachusetts, . . . Each Party hereby irrevocably
submits 	to 	the 	jurisdiction 	of 	such 	courts 	in 	any 	suits, 	actions
or proceedings arising out of or relating to this Agreement.”).4
III. 	DISCUSSION
As 	earlier 	noted, 	the 	court 	is 	allowing 	the 	motion 	to 	set
aside the default and receive supplemental briefing addressing the
$75,000 component of diversity jurisdiction.
A. 	Setting Aside the Default
The standard to set aside an entry of default for good cause
is 	a 	“liberal 	one,” 	meant 	to 	ensure 	actions 	are 	resolved 	on 	the
merits. 	Bryan v. Lark Hotels, LLC, 323 F.R.D. 116, 117 (D. Mass.
2017). 	“There is no mechanical formula” to determine good cause.
Indigo 	Am. 	Inc. 	v. 	Big 	Impressions, 	LLC, 	597 	F.3d 	1, 	3 	(1st 	Cir.
2010) 	(citation 	omitted). 	Rather, 	courts 	may 	consider 	various
factors 	including: 	“(1) 	whether 	the 	default 	was 	willful; 	(2)
whether setting it aside would prejudice the adversary; . . . (3)
4 	The 	complaint 	asserts 	that 	the 	Master 	Agreement 	states 	that 	“the 	parties
‘consent[] to [the] jurisdiction of courts in Middlesex County, Massachusetts,
and 	waive[] 	any 	objections 	to 	such 	jurisdiction.’” 	(D. 	1). 	The 	slightly
different language does not change the outcome. 	First, the language uses the
word “of,” which, as discussed below, means Massachusetts state courts. 	Second,
there is no federal district court in Middlesex County.
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whether 	a 	meritorious 	defense 	is 	presented”; 	as 	well 	as 	“(4) 	the
nature 	of 	the 	defendant’s 	explanation 	for 	the 	default; 	(5) 	the
good faith of the parties; (6) the amount of money involved;” and
“(7) the timing of the motion to set aside the entry of default.”
Id. (omitting citations, internal brackets, and internal quotation
marks); 	see, 	e.g., 	Wilson 	v. 	Town 	of 	Fairhaven, 	Civil 	Action 	No.
18-11099-PBS, 	2019 	WL 	1757780, 	at 	*29 	(D. 	Mass. 	Mar. 	4, 	2019)
(setting 	aside 	entry 	of 	default 	and 	denying 	motion 	for 	default
judgment based on balancing above factors).
Here, the default was not wilful, and the defendant provides
an explanation for the delay. 	By affidavit, the defendant attests
that 	it 	sought 	the 	extension 	of 	time 	to 	file 	a 	response 	to 	the
complaint and for leave to electronically-file documents pro se in
good faith based on communications with the CM/ECF help desk. 	(D.
22-2). 	Once 	the 	court 	denied 	the 	request 	on 	March 	17, 	the
defendant understood that it needed to retain counsel in the United
States. 	Whereas 	it 	took 	until 	June 	24 	to 	identify 	and 	retain
counsel, the company explains, again by affidavit, that it retained
counsel as soon as possible given its limited financial resources
as a small company and unfamiliarity with the United States legal
system. 	See 	Indigo, 	597 	F.3d 	at 	3-4 	(finding 	default 	not 	wilful
because 	limited 	liability 	company’s 	sole 	member 	stated, 	by
affidavit, 	company 	was 	unaware 	of 	“rule 	barring 	a 	person 	who 	is
not 	licensed 	to 	practice 	law 	from 	representing 	a 	corporation 	in
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court”). 	Given the circumstances, the defendant’s explanation is
reasonable. 	See Coon v. Grenier, 867 F.2d 73, 77 (1st Cir. 1989)
(“Allowing 	an 	entry 	of 	default 	to 	be 	set 	aside 	on 	a 	showing 	of
reasonable 	justification 	is 	in 	keeping 	both 	with 	the 	philosophy
that 	actions 	should 	ordinarily 	be 	resolved 	on 	their 	merits, 	and
with the command of the Civil Rules themselves.”) (citing Fed. R.
Civ. Proc. 1).
Next, the plaintiff asserts that the defendant unduly delayed
in securing counsel. 	The plaintiff submits, accurately, that more
than 	four 	months 	elapsed 	between 	service 	of 	the 	complaint 	on 	the
defendant 	and 	its 	retention 	of 	counsel. 	Similarly, 	three 	months
passed between the date the court notified the defendant it could
not proceed pro se and the date the defendant’s counsel filed the
notice of appearance, per the plaintiff’s argument. 	The argument
fails to persuade.
“[D]elay 	in 	and 	of 	itself 	does 	not 	constitute 	prejudice.”
Indigo, 	597 	F.3d 	at 	4 	(citations 	omitted). 	Rather, 	prejudice
invokes 	the 	dangers 	accompanying 	a 	delay, 	such 	“as 	loss 	of
evidence” and “increased difficulties of discovery.” 	Id. (quoting
FDIC v. Francisco Inv. Corp., 873 F.2d 474, 479 (1st Cir. 1989, in
parenthetical); see Coon, 867 F.2d at 77 (finding passage of time,
or simply requiring party to litigate action, is not sufficient to
show 	prejudice) 	(collecting 	cases). 	Here, 	there 	is 	little, 	if
any, 	prejudice. 	For 	instance, 	there 	is 	no 	indication 	of 	lost
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evidence, increased difficulties with discovery, or witnesses who
have died.
Notably, 	the 	defendant 	presents 	a 	meritorious 	defense
premised on the language of the forum selection clause as meaning
Massachusetts state courts. 	The existence of a meritorious defense
is 	significant. 	See 	Indigo, 	597 	F.3d 	at 	4 	(noting 	“obvious
significance” 	of 	meritorious 	defense 	because, 	without 	such, 	“it
makes little sense to set aside the entry of default, as doing so
would 	merely 	delay 	the 	inevitable”). 	Moreover, 	establishing 	a
meritorious 	defense 	is 	not 	an 	“arduous 	task.” 	Id. 	“[A] 	party’s
averments need only plausibly suggest the existence of facts which,
if 	proven 	at 	trial, 	would 	constitute 	a 	cognizable 	defense.” 	Id.
(quoting Coon, 867 F.2d at 77) (additional citation omitted).
To 	begin, 	a 	forum 	selection 	clause 	“does 	not 	oust 	the
jurisdiction 	of 	the 	courts.” 	LFC 	Lessors, 	Inc. 	v. 	Pac. 	Sewer
Maint. 	Corp., 	739 	F.2d 	4, 	6 	(1st 	Cir. 	1984) 	(citation 	omitted);
accord 289 Kilvert, LLC v. SBC Tower Holdings LLC, 133 F.4th 1, 7
n.3 (1st Cir. 2025) (quoting LFC Lessors, 739 F.2d at 6). 	Instead,
it “constitutes a stipulation in which the parties join in asking
the 	court 	to 	give 	effect 	to 	their 	agreement 	by 	declining 	to
exercise 	its 	jurisdiction.” 	LFC 	Lessors, 	739 	F.2d 	at 	6; 	accord
289 Kilvert, 133 F.4th at 7 n.3 (quoting LFC Lessors, 739 F.2d at
6). 	“Indeed, ‘even a mandatory forum-selection clause does not in
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fact 	divest 	a 	court 	of 	jurisdiction 	that 	it 	otherwise 	retains.’”
289 Kilvert, 133 F.4th at 7 n.3 (citation omitted).
Here, 	the 	parties 	agree 	that 	they 	designated 	the 	courts 	“of
the 	Commonwealth 	of 	Massachusetts.” 	This 	language 	typically
conveys 	a 	request 	to 	limit 	jurisdiction 	over 	the 	dispute 	to
Massachusetts 	state 	courts. 	See 	LFC 	Lessors, 	739 	F.2d 	at 	7
(reasoning 	that 	language 	“courts 	of 	Massachusetts” 	in 	forum
selection 	clause 	“was 	intended 	to 	mean 	that 	all 	actions 	on 	[the]
contract 	must 	be 	brought 	in 	Massachusetts 	state 	courts”). 	A
relatively recent district court case summarizes the basis for the
distinction 	in 	LFC 	Lessors, 	739 	F.2d 	at 	6-7, 	between 	using 	the
word “of” versus “in” anent a forum selection clause:
[F]orum 	selection 	clauses 	using 	the 	term 	“in 	[a 	state]”
express[ 	] 	the 	parties’ 	intent 	as 	a 	matter 	of 	geography,
permitting jurisdiction in both the state and federal courts
of 	the 	named 	state 	. 	. 	. 	.” 	Conversely, 	“forum 	selection
clauses that use the term ‘of [a state]’ connote sovereignty,
limiting jurisdiction over the dispute to the state courts of
the named state.”
MMT, 	Inc. 	v. 	Hydro 	Int’l, 	Inc., 	C.A. 	No. 	21-027-JJM-LDA, 	2021 	WL
1109321, at *2 (D.R.I. Mar. 23, 2021) (citing, among other cases,
LFC 	Lessors, 	739 	F.2d 	at 	7); 	accord 	R.E. 	Moulton, 	Inc. 	v. 	RAC
Assoc., LLC, Civil Action No. 09–11069–PBS, 2009 WL 4730990, at *1
(D. Mass. Dec. 8, 2009) (providing similar analysis). 	Because the
parties essentially concur that the clause in the Master Agreement
employs the word “of,” the defendant plausibly suggests facts, if
proven, 	would 	constitute 	a 	meritorious 	defense. 	See 	generally
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Aiyegbusi v. Knight, Civil Action No. 07–2766, 2008 WL 370619, at
*2 (E.D.Pa. Feb. 7, 2008) (setting aside default judgment in part
based 	on 	meritorious 	defense 	of 	improper 	venue 	based 	on 	forum
selection 	clause). 	Moreover, 	where, 	as 	here, 	a 	forum-selection
clause 	purports 	to 	require 	a 	state 	“tribunal to 	which 	transfer 	is
not 	possible, 	the 	appropriate 	mechanism 	to 	enforce 	the 	clause 	is
through the doctrine of forum non conveniens.” 	Kelly v. Riverside
Partners, 	LLC, 	397 	F.Supp.3d 	75, 	85 	(D. 	Mass. 	2019) 	(citing 	Atl.
Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571
U.S. 49, 60 (2013)).
Per the foregoing, as stated above, the defendant provides a
meritorious 	defense 	based 	on 	the 	forum 	selection 	clause. 	It 	is
therefore 	not 	necessary 	to 	address 	the 	other 	purportedly
meritorious 	defense 	the 	defendant 	asserts 	which 	is 	based 	on 	a
limitation of liability provision (“LOL provision”) in the Master
Agreement.
To 	complete 	the 	analysis, 	the 	amount 	of 	money 	at 	stake 	is
somewhat substantial given the limited financial resources of the
defendant. 	The complaint alleges that the defendant has not paid
approximately 	$120,000. 	(D. 	1, 	¶¶ 	25-26). 	This 	factor 	thus
weighs, 	albeit 	not 	substantially, 	in 	the 	defendant’s 	favor.
Conversely, 	the 	plaintiff 	promptly 	filed 	the 	motion 	to 	set 	aside
the 	default 	after 	the 	defendant 	failed 	to 	file 	a 	responsive
pleading 	by 	the 	February 	27 	deadline. 	Consequently, 	this 	factor
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weighs 	in 	the 	plaintiff’s 	favor. 	Lastly, 	the 	good 	faith 	of 	the
parties does not change the balancing calculus. 	In sum, balancing
all of relevant factors, good cause exists to set aside the entry
of default.
B. 	Jurisdiction
The defendant asserts that the LOL provision calls into doubt
whether the diversity threshold of $75,000 is met. 	The assertion
warrants further briefing.
To 	explain, 	the 	LOL 	provision, 	as 	quoted 	in 	the 	defendant’s
memorandum, states in pertinent part:
The 	total 	aggregate 	liability 	of 	either 	party 	. 	. 	. 	for 	any
claims 	or 	causes 	of 	action 	arising 	under 	[the 	Master
Agreement] 	will 	not 	exceed 	the 	aggregate 	amount 	paid 	and
payable 	to 	OpenClinica 	by 	Subscriber 	during 	the 	twelve 	(12)
month period preceding the date on which the claim arises.
(D. 23).
The 	law 	is 	well 	settled. 	“The 	party 	invoking 	diversity
jurisdiction bears the burden of establishing that the amount-in-
controversy requirement is satisfied.” 	Andersen v. Vagaro, Inc.,
57 	F.4th 	11, 	14 	(1st 	Cir. 	2023). 	Ordinarily, 	this 	amount 	is
determined 	“from 	the 	complaint 	itself, 	unless 	it 	appears 	or 	is
[demonstrated] that the amount stated . . . is not claimed in good
faith.” 	Horton 	v. 	Liberty 	Mut. 	Ins., 	Co., 	367 	U.S. 	348, 	353
(1961); 	Kersey 	v. 	Peoples’ 	United 	Bank, 	N.A. 	of 	Ct., 	No. 	16-cv-
12414-PBS, 2017 WL 8730466, at *3 (D. Mass. Nov. 7, 2017) (quoting
Horton, 	367 	U.S. 	at 	353, 	in 	parenthetical). 	“[W]hen 	challenged,
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the 	plaintiff 	‘has 	the 	burden 	of 	alleging 	with 	sufficient
particularity 	facts 	indicating 	that 	it 	is 	not 	a 	legal 	certainty
that 	the 	claim 	involves 	less 	than 	the 	jurisdictional 	amount.’”
Andersen, 57 F.4th at 15 (citations omitted). 	Further, even though
the 	complaint 	states 	that 	the 	“amount 	invoiced 	by 	OpenClinca 	is
$96,080.00,” it is unclear whether this amount was paid or payable
to 	the 	plaintiff 	“by 	Subscriber 	during 	the 	twelve 	month” 	period
prior 	to 	the 	date 	the 	claim 	arose. 	Accordingly, 	the 	plaintiff
must 	provide 	“additional 	documentation, 	such 	as 	affidavits” 	or
other 	competent 	proof. 	Id. 	(“holding 	that 	a 	plaintiff, 	when
challenged, 	must 	provide 	‘competent 	proof’ 	supporting
jurisdictional 	claim” 	(quoting 	McNutt 	v. 	Gen. 	Motors 	Acceptance
Corp. of Ind., 298 U.S. 178, 189 (1936))).
The 	plaintiff 	is 	therefore 	instructed 	to 	file 	a 	memorandum
limited 	to 	five 	pages 	along 	with 	the 	necessary 	documentation
showing it is not a legal certainty that the claim falls short of
$75,000. 	The plaintiff shall file the memorandum by December 15.
The 	defendant 	may 	file 	a 	response 	limited 	to 	five 	pages 	no 	later
than January 5.
IV. 	CONCLUSION
In 	accordance 	with 	the 	foregoing 	discussion, 	the 	motion 	to
set 	aside 	the 	default 	(D. 	22) 	is 	ALLOWED. 	As 	instructed, 	the
plaintiff shall file a memorandum limited to five pages along with
the 	necessary 	documentation 	showing 	it 	is 	not 	a 	legal 	certainty
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that 	the 	claim 	falls 	short 	of 	$75,000 	by 	December 	15. 	The
defendant may file a response limited to five pages no later than
January 5.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED: 	November 25, 2025
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