Free Motion for Default Judgment - District Court of Delaware - Delaware

Case 1:06-cv-00644-JJF

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TRISTRATA TECHNOLOGY, INC. Plaintiff, v. REVISION SKIN CARE, INC., MEDICAL SKIN THERAPY RESEARCH, INC., REVISION SKIN CARE, INC. and Z COSMETICA USA, Inc. Defendants. ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 06-644(JJF)

PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AND INCORPORATED MEMORANDUM OF LAW Plaintiff Tristrata Technology, Inc. ("TTI"), by and through its counsel, respectfully moves this Court for a default judgment against Defendant Revision Skin Care, Inc. ("RSCI"), pursuant to Federal Rule of Civil Procedure 55. MOTION FOR DEFAULT JUDGMENT 1. Skin Care, Inc. 2. On February 13, 2007, TTI served RSCI pursuant to 10 Del. C. § 3104 ­ by On October 17, 2006, Plaintiff filed its Complaint against Defendant Revision

serving, the Secretary of State pursuant to 10 Del. C. § 3104 and caused a copy of the Complaint, the summons for Revision, and a letter addressed to RSCI, to be forwarded to RSCI via registered mail return receipt requested. A copy of the letter and registered mail receipt are attached hereto as Exhibit A. Neither the return receipt card nor the package was returned. However, a confirmation of delivery, was obtained using the United States Postal Service website , www.usps.gov is attached hereto as Exhibit B.

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3.

RSCI was required under Fed. R. Civ. P. 12(a)(1)(A) to file an answer to the

Complaint within twenty (20) days of service or by no later than March 5, 2007. 4. On March 29, 2007, parties submitted to the court a stipulation and proposed

order to extend time for RSCI's time to answer the complaint until April 27, 2007 (D.I. 10). A copy of the stipulation is attached hereto as Exhibit C. The court granted the proposed order on March 30, 2007.

5.

To date, RSCI has not answered or otherwise responded to the Complaint nor has

an appearance been entered on RSCI's behalf.

WHEREFORE, Plaintiff respectfully requests that the Court: A. Enter a default judgment against RSCI pursuant to Fed. R. Civ. P. 55 on all counts

of the Complaint; B. damages; C. D. and costs; and E. proper. Award to Plaintiffs such other and additional relief as this Court deems just and Grant Plaintiff attorney's fees and costs; Schedule a hearing to determine the amount of damages, including attorney's fees Grant Plaintiff a period of time for discovery to determine the amount of

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INCORPORATED MEMORANDUM OF LAW As noted in the Exhibits attached hereto, RSCI was served with the summons and Complaint on February 26, 2007. To date, RSCI has not answered the Complaint nor entered an appearance in this action. Because RSCI's answer was due on or before April 27, 2007, it is clear that RSCI is in default and judgment should be entered against it. Plaintiff thus respectfully requests that this Court enter a default judgment against RSCI in the manner set forth above.

Dated: May 8, 2008

Respectfully submitted, /s/ Arthur G. Connolly, III Arthur G. Connolly, III (#2667) CONNOLLY BOVE LODGE & HUTZ LLP The Nemours Building 1007 N. Orange Street P.O. Box 2207 Wilmington, DE 19899 (302) 658-9141 Of Counsel: Michael O. Warnecke Douglas L. Sawyer PERKINS COIE 131 South Dearborn Street Suite 1700 Chicago, IL 60603-5559 Kevin M. McGovern Brian T. Foley McGOVERN & ASSOCIATES 545 Madison Avenue, 15th Floor New York, New York 10022 (212) 688-9840

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 8, 2008, the foregoing document was served via FirstClass U.S. Mail and CM/ECF on the following counsel of record:

Louise Bianco, President Louise Bianco Skin Care, Inc. 13655 Chandler Boulevard Sherman Oaks, CA 91401 Brenda Purdy, President Medical Skin Therapy Research Inc. P.O. Box 231268 Encinitas, CA 92023 John Muller, President Revision Skincare Inc. 9019 Premier Row Dallas, TX 75247 Philip Zellner Z Cosmetica USA, LLC 1650 New Highway Farmingdale, NY 11735

TEPLEN & ASSOCIATES, PLLC Philip H. Teplen, Esq. Empire State Building 350 Fifth Avenue, 57th Floor New York, NY 10118

_/s/Arthur G. Connolly, III _ Arthur G. Connolly, III (#2667)

#608891_1

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