Earlier this month, Judge Robinson issued a memorandum opinion in Girafa.com, Inc. vs. Smartdevil, Inc., C.A. No. 07-787-SLR (D. Del. Aug. 8, 2010). Girafa had initially brought a patent infringement action against a series of defendants, but Judge Robinson granted a motion for summary judgment of non-infringement in September 2009, and the case was then dismissed by stipulation with respect to the defendants other than Smartdevil.
In January, Girafa filed a motion for default judgment as to Smartdevil. Smartdevil is based in Canada, and its owner is apparently representing it pro se due to its "inability to procure reasonable representation" because "Smartdevil could not afford a minimum retainer fee of $50,000." Id. at 3-4. The Court refused to enter a default judgment. While service of the complaint was proper, Girafa failed to show sufficient prejudice, and Smartdevil has presented "facially meritorious" invalidity and non-infringement defenses. Id. at 4. Smartdevil also presented some evidence of its financial inability to afford counsel, and the Court held that Smartdevil's delay was not attributable to bad faith and did not constitute culpable conduct.