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. LOUISE BIANCO SKIN CARE, INC., MEDICAL SKIN THERAPY RESEARCH, INC., REVISION SKIN CARE, INC. and Z COSMETICA USA, LLC. 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 Medical Skin Therapy Research, Inc. ("MSTRI"), pursuant to Federal Rule of Civil Procedure 55. MOTION FOR DEFAULT JUDGMENT 1. 2. On October 17, 2006, Plaintiff filed its Complaint against Defendant MSTRI. On February 21, 2007, TTI served MSTRI pursuant to 10 Del. C. § 3104 ­ by

serving, the Secretary of State pursuant to 10 Del. C. § 3104, filed the executed return of service with the Court, and caused a copy of the Complaint, the summons for MSTRI, and a letter addressed to MSTRI, to be forwarded to MSTRI via registered mail return receipt requested. A copy of the letter and registered mail receipt are attached hereto as Exhibit A. A copy of the confirmation and tracking form received from the United States Postal Service is attached hereto as Exhibit B.

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3.

On April 2, 2007, Arthur G. Connolly, III on behalf of TTI, filed an Affidavit of

Mailing pursuant to 10 Del. C. § 3104 and D. Del. LR 4.1(b), in which the details of service are described. A copy of the Affidavit is attached hereto as Exhibit C. 4. MSTRI 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 April 23, 2007. 5. To date, MSTRI has not answered or otherwise responded to the Complaint nor

has an appearance been entered on MSTRI's behalf.

WHEREFORE, Plaintiff respectfully requests that the Court: A. Enter a default judgment against MSTRI 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, MSTRI was served with the summons and Complaint on February 21, 2007. To date, MSTRI has not answered the Complaint nor entered an appearance in this action. Because MSTRI's answer was due on or before April 23, 2007, it is clear that MSTRI is in default and judgment should be entered against it. Plaintiff thus respectfully requests that this Court enter a default judgment against MSTRI in the manner set forth above.

Dated: May 2, 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 2, 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)

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