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AKARI IMEJI CO. v. QUME CORP.

September 7, 1990

AKARI IMEJI COMPANY, Plaintiff,
v.
QUME CORPORATION, a California Corporation, LEX COMPUTER SYSTEMS, a Division of Schweber Electronics Corporation, Schweber Electronic Corporations, a New York Corporation, MICROAMERICA, INC., a Delaware Corporation, and CASIO Computers Co., Ltd., a Japan corporation, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court are three motions: plaintiff Akari Imeji Company's ("AIC") motion for default judgment, and defendant Casio Computer Ltd.'s ("Casio Computer") motions to set aside entry of default, and to quash service of process. For the reasons discussed below, AIC's motion is denied and both of Casio Computer's motions are granted.

 FACTS

 On January 23, 1989, AIC filed suit against defendant Qume Corporation ("Qume"), alleging that Qume had infringed Patent No. 3,824,604 entitled "Alphanumeric Printing System Employing Liquid Crystal Matrix" (the "Stein Patent"). *fn1" On April 24, 1989, AIC filed an Amended Complaint, adding defendants Lex Computer Systems and Micro America, Inc. AIC added defendant Casio Computer in its Second Amended Complaint which it filed on November 17, 1989. This pleading alleges that Casio Computer has infringed the Stein patent by:

 
its development and subsequent making, selling, distributing and inducing others to use, in the United States, products, including the Crystal Print Series II Page Printer, the Crystal Print WP Page Printer and the Crystal Print Publisher, covered by the claims of the Stein patent.

 Second Amended Complaint, para. 6.

 After Casio Computer failed to respond to the summons within the requisite period, AIC asked the Clerk of the Court to enter a technical default against Casio Computer. On February 27, 1990, the Clerk entered the default. AIC then moved for a default judgment against Casio Computer, prompting Casio Computer to file its appearance and move to set aside the technical default. Casio Computer later filed its Response to AIC's Motion for Default Judgment, together with a Motion to Quash the service of summons. *fn2"

 DISCUSSION

 The common denominator of each of the three motions before the court is the issue of sufficiency of service. If service was improper, the entry of default against Casio Computer is void; *fn3" Casio Computer's Motion to Set Aside Entry of Default and Motion to Quash necessarily must be granted, and AIC's Motion for Default Judgment necessarily must be denied. Conversely, if service was proper, the Motion to Quash must be denied and the court must apply the "good cause" test of Fed. R. Civ. P. 55(c) to determine whether to set aside the default, or enter judgment on it. Because the sufficiency of service issue is central to all of the motions before the court, it is addressed first.

 Where the defendant is not an inhabitant of, or found within, the state in which the court sits, Fed. R. Civ. P. 4(e) provides the applicable rule regarding proper service of summons. *fn4" Rule 4(e) states that when an action is brought under a federal statute which does not provide for service of summons, service may be made under the circumstances and in the manner prescribed by the statutes or rules of the court of the state in which the district court sits. As this action is brought under the U.S. Patent Act (Title 35, U.S.C.), which does not prescribe a manner of service, service in this case must be made in accordance with the Illinois service rules.

 Ill. Rev. Stat. ch. 110, para. 2-208(b) provides the manner in which a summons must be served on a defendant outside Illinois:

 
The service of summons shall be made in like manner as service within this State, by any person over 18 years of age not a party to the action. No order of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any ...

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