case 3:12-cv-00259-JVB-CAN document 27

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION MACDERMID PRINTING SOLUTIONS, LLC ) ) ) ) ) ) ) ) ) ) ) ) )

Plaintiff, V. CLEAR STAMP, INC. and CORIUM, INC.,

Civil No. 3:12-CV-259-JVB-CAN

Defendants.

PLAINTIFF MACDERMID PRINTING SOLUTIONS, LLCS RESPONSE TO DEFENDANT CORIUM, INC.S THREE MOTIONS Plaintiff MacDermid Printing Solutions, LLC (MacDermid) asks the Court to deny as moot Defendant Coriums three motions [Doc. Nos. 20, 22, and 24] because MacDermid has effected service on Corium via its registered agent, Robert D. Wilson, and MacDermid stipulates to setting aside the Clerks Entry of Default. In support, MacDermid states: 1. On August 8, 2012 process server George Sawaya personally served the summons

and complaint on Robert D. Wilson, who is the registered agent for Corium, in the parking lot of Mr. Wilsons office building in Chagrin Falls, Ohio, after Mr. Wilson, an attorney, refused to accept service in his office and initially denied his identity in the parking lot. See Doc. No. 26, Affidavit of Service on Corium. A copy of Coriums record with the Ohio Secretary of State, which shows Mr. Wilson listed as the registered agent, is attached to this Response as Exhibit A.

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2.

This constitutes valid and sufficient service on Corium, a corporation. Fed. R.

Civ. P. 4(h)(1)(B) (stating that service upon any other agent authorized by appointment or by law to receiver service of process constitutes service on a corporation). 3. The personal service on Mr. Wilson also constitutes service on Corium under Fed.

R. Civ. P. 4(h)(1)(A), which allows service in the manner prescribed by Rule 4(e)(1), which in turn allows a party to use service methods of the state where the district court is located, which is Indiana. Indiana Rule of Trial Procedure 4.6 states that service on an organization may be made on a registered agent of a domestic or foreign organization. See Ind. R. Tr. P. 4.6(A) & (B); 4.1(A)(2) (stating that personal service of a summons and complaint on an individual who is a registered agent is an acceptable method of service). 4. After Corium filed its three motions, MacDermid offered to consent to setting

aside the Clerks Entry of Default against Corium, if Coriums counsel would accept service of the Complaint. MacDermid made this good faith offer so that the case could proceed to the merits expeditiously rather than the parties and the court spending time on procedural matters. Unfortunately, Coriums counsel responded that Mr. Wilson had instructed him not to accept service of the Complaint. 5. As a result of Coriums and Wilsons conduct, MacDermid was forced to incur

the expense of hiring a process server to track Mr. Wilson down and serve him personally. 6. Because courts prefer to adjudicate cases on the merits, and in the interest of

judicial efficiency and economy for the parties, MacDermid stipulates to setting aside the Clerks Entry of Default against Corium. By stipulating to setting aside Clerks Entry of Default, MacDermid does not agree with any of Coriums assertions in its motions, particularly Coriums assertions regarding its purported meritorious defenses.

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7.

Corium has filed three different motions, but the substance of each motion is the

same. The three motions attack the sufficiency of service that was done by registered mail and argue that the entry of default against Corium should be set aside. The motions mention dismissal for failure to state a claim and lack of personal jurisdiction, but the substance of those arguments is the allegation of insufficient service. The arguments and motions are now moot in light of service on Corium via personal service on its agent, Robert D. Wilson. 8. Accordingly, the Court should deny the motions as moot and order the Clerk to

set aside the entry of default so that the parties can submit a joint discovery plan, hold the Rule 26(f) conference, and begin discovery as soon as possible. In conclusion, MacDermid asks the court to deny as moot Coriums three motions and order the Clerk to set aside entry of default.

Respectfully submitted,

/s/ John A. Drake John D. LaDue (19039-71) John A. Drake (28534-02) LaDue Curran & Kuehn LLC 200 First Bank Building 205 West Jefferson Boulevard South Bend, IN 46601 Tel: 574.968.0760 Fax: 574.968.0761 jladue@lck-law.com jdrake@lck-law.com John R. Horvack, Jr., pro hac vice Brian Y. Boyd, pro hac vice Carmody & Torrance LLP 195 Church Street, 18th Floor New Haven, CT 06509-1950 Attorneys for Plaintiff MacDermid Printing Solutions, LLC 3

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CERTIFICATE OF SERVICE I certify that on August 10, 2012, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which sent notification of such filing to the following: W. Todd Woelfer Marcel M. Lebbin May Oberfell Lorber 4100 Edison Lakes Parkway, Suite 100 Mishawaka, IN 46545 wwoelfer@maylorber.com mlebbin@maylorber.com John F. Lake Lake & Lake PO Box 9216 Michigan City, IN 46361 lakelaw101@hotmail.com John R. Horvack, Jr., pro hac vice Brian Y. Boyd, pro hac vice Carmody & Torrance LLP 195 Church Street, 18th Floor New Haven, CT 06509-1950

/s/ John A. Drake