United States of America v. 4268 Los Angeles Avenue Simi Valley California 93063

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
4268 LOS ANGELES AVENUE SIMI
VALLEY CALIFORNIA 93063,
Defendant,
and
BIRDMAN DISTRIBUTION CORP.;
DIDIER DE NIER,
Movants - Appellants.
No. 14-56226
D.C. No. 2:12-cv-09788-RGK-
MRW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted June 9, 2016**
Pasadena, California
FILED
JAN 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: RAWLINSON and BEA, Circuit Judges and EATON, Judge.
Movants-Appellants Birdman Distribution Corporation (Birdman) and
Didier De Nier (De Nier) on behalf of 4268 Los Angeles Avenue (Defendant
Property), appeal a district court order denying a motion to vacate a default
judgment. Appellants contend that the district court’s default judgment should be
vacated due to insufficient service of process.
“A district court may set aside a default judgment in accordance with
Federal Rule of Civil Procedure 60(b).” Sec. & Exch. Comm’n v. Internet Sols. for
Bus. Inc., 509 F.3d 1161, 1164 (9th Cir. 2007) (citation, footnote reference, and
internal quotation marks omitted). A default judgment must be set aside if the
court lacked jurisdiction over the defendants due to insufficient service of process.
See id. at 1165. In civil forfeiture actions against real property, the government is
required to: (A) file a complaint for forfeiture; (B) post a notice of the complaint
on the property; and (C) serve notice on the real property owner. See 18 U.S.C. §
985(c)(1). When a defendant is a corporation, service is proper when copies of the
notice and complaint are delivered to “any. . . agent authorized by appointment or
by law to receive service of process . . .” Fed. R. Civ. P. 4(h). “[A] defendant
*** The Honorable Richard K. Eaton, Judge of the United States Court of
International Trade, sitting by designation.
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moving to vacate a default judgment based on improper service of process, where
the defendant had actual notice of the original proceeding but delayed in bringing
the motion until after entry of default judgment, bears the burden of proving that
service did not occur. . . .” Internet Solutions, 509 F.3d at1165.
We agree with the district court that the government properly served the
complaint for forfeiture. According to filings with the California Secretary of
State, Russell Takasugi was Birdman’s designated agent for service of process.
The government personally served the summons and complaint for the forfeiture
action on Takasugi. This is prima facie proof that service of process was effected
upon Birdman. See id. at 1166. The record also supports the conclusion that De
Nier had actual knowledge of the forfeiture action due to the government’s
repeated attempts to serve De Nier. Indeed, at a bail hearing in the underlying
criminal action, De Nier admitted that “he was served with a lot of paperwork
regarding civil cases” but tried to explain that “he did not necessarily understand
the difference between a civil claim and a criminal claim.” Thus, De Nier’s
subsequent declaration asserting that he had no notice of the forfeiture action, see
id. at 63, does not constitute “strong and convincing evidence” sufficient to
overcome the “prima facie evidence of valid service,” Internet Solutions, 509 F.3d
at 1166.
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Appellants’ remaining argument that good cause existed to set aside the
default judgment on the merits under Rule 60(6) is unavailing. A defendant may
only show good cause to set aside a judgment under Fed. R. Civ. P. 60(b) by filing
a motion within one year of entry of the judgment. See Internet Solutions, 509
F.3d at 1165. Here, Appellants filed their motion to vacate the default judgment on
May 5, 2014, over one year after entry of the judgment.
AFFIRMED.
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