govinfo:USCOURTS-kywd-3_24-cv-00749-0

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
LOUISVILLE DIVISION 
 
GS HOLISTIC, L.L.C. Plaintiff 
 
v. Civil Action No. 3:24-cv-749-RGJ 
 
4K SMOKE SHOP LLC D/B/A 4K SMOKE 
SHOP AND MUSTAFA KHALID 
Defendants 
 
* * * * * 
 
MEMORANDUM OPINION AND ORDER 
 
 This matter is before the Court on a Motion for Default Judgment filed by Plaintiff GS 
Holistic L.L.C. (“GS Holistic”) and the Motion to Set Aside Clerk’s Entry of Default filed by 
Defendants 4K Smoke Shop LLC d/b/a 4K Smoke Shop (“4K Smoke Shop”), and Mustafa Khalid 
(“Khalid”)(collectively “Defendants”). This matter is ripe for adjudication. For the reasons below, 
the Motion for Default Judgment [DE 13] is DENIED and the Motion to Set Aside Clerk’s Entry 
of Default [DE 15] is GRANTED. 
I. BACKGROUND 
 GS Holistic asserts in its complaint that Defendants willfully infringed its trademarks in 
violation of 15 U.S.C. §§ 1114, counterfeited its trademarks in violation of 15 U.S.C. §§ 1116(d), 
and made a false designation origin in violation of 15 U.S.C. § 1125(a) . [DE 1 at 13-14]. GS 
Holistic’s complaint was filed on December 31, 2024. [DE 1]. Summonses were issued by Clerk 
of Court on January 2, 2025. [DE 5]. GS Holistic filed two separate proofs of service, one for each 
Defendant. [DE 6, DE 7 ]. On June 6, 2025 , GS Holistic moved for entry of default against 
Defendants, [DE 8], which the clerk thereafter entered, [DE 9]. On April 9, 2026, GS Holistic 
filed a Motion for Default Judgment. [DE 13]. Defendants filed a response objecting to the motion 
[DE 14] along with Motion to Set Aside Entry of Default [DE 15]. GS Holistic did not file a reply PageID #:
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in support of its Motion for Default Judg ment or a response to Defendants’ Motion to Set Aside 
Default Judgment. 
II. STANDARD 
Federal Rule of Civil Procedure 55(c) provides that “[t]he court may set aside an entry of 
default for good cause.” Under the “good cause” standard of Rule 55(c), “‘the district court enjoys 
considerable latitude’ to grant a defendant relief from a default entry.” S.E.C. v. Marklinger, 489 
Fed. App’x. 937, 939 (6th Cir. 2012) (citing Waifersong, Ltd., Inc. v. Classic Music Vending, 976 
F.2d 290, 292 (6th Cir. 1992)). When a defendant seeks relief from entry of default, the Court 
must consider three equit able factors to determine whether “good cause” is shown: “(1) whether 
culpable conduct of the defendant led to the default, (2) whether the defendant has a meritorious 
defense, and (3) whether the plaintiff will be prejudiced. ” Burrell v. Henderson , 434 F.3d 826, 
831 (6th Cir. 2006) (quoting Waifersong, 976 F.2d at 292)). 
“Due process requires proper service of process for a court to have jurisdiction to adjudicate 
the rights of the parties ,” thus, “if service of process was not proper, the court must set aside an 
entry of default.” O.J. Distrib., Inc. v. Hornell Brewing Co ., 340 F.3d 345, 353 (6th Cir. 2003), 
abrogated on other grounds by Morgan v. Sundance, Inc ., 596 U.S. 411. (2022) (citing Omni 
Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd ., 484 U.S. 97, 104 (1987) (“Before a federal court 
may exercise personal jurisdiction over a defendant, the procedural requirement of service of 
summons must be satisfied.”)); and Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067 (6th Cir. 
1990). PageID #:
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III. DISCUSSION 
 Defendants argue that GS Holistic did not effectuate proper service of process on them. 
Under Fed. R. Civ. P. 4(h), an unincorporated entity, such as a limited liability company, must be 
served as follows: 
(1) in a judicial district of the United States: (A) in the manner prescribed by Rule 
4(e)(1) for serving an individual; or (B) by delivering a copy of the summons and 
of the complaint to an officer, a managing or general agent, or any other agent 
authorized by appointment or by law to receive service of process and —if the 
agent is one authorized by statute and the statute so r equires—by also mailing a 
copy of each to the defendant; or (2) at a place not within any judicial district of 
the United States, in any manner prescribed by Rule 4(f) for serving an individual, 
except personal delivery under (f)(2)(C)(i). 
 
Fed. R. Civ. P. 4(h). Serving an individual within a judicial district of the United States requires 
service by: 
(1) following state law for serving a summons in an action brought in courts of 
general jurisdiction in the state where the district court is located or where service 
is made; or (2) doing any of the following: (A) delivering a copy of the summons 
and of the complaint to the individual personally; (B) leaving a copy of each at the 
individual’s dwelling or usual place of abode with someone of suitable age and 
discretion who resides there; or (C) delivering a copy of each to an agent authorized 
by appointment or by law to receive service of process. 
 
Fed. R. Civ. P. 4(e). 
The proof of service filed as to 4K Smoke Shop states that on January 7, 2025, the process 
server went to 4K Smoke Shop’s shop location and delivered the complaint and summons to an 
“Ali Ali” who was the “Manager.” [DE 6]. 4K Smoke Shop submits proof from the Kentucky 
Secretary of State that its registered agent for service of process was and is Khalid, who is also the 
entity’s sole member. [DE 15 at 136, DE 15-1]. Khalid submitted an affidavit that Ali Ali was not 
an employee of the company, but a friend helping at the store that day while Khalid was out of the 
country and with no title or authority to accept service of process. [DE 15 -2 at 144]. Nothing in PageID #:
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the record suggests that Ali Ali was “an officer, a managing or general agent, or any other agent 
authorized by appointment or by law to receive service of process” within the meaning of Fed. R. 
Civ. P. 4(h) or that Ali Ali was otherwise authorized to accept service on behalf of 4K Smoke 
Shop. And GS Holistic makes no argument or response as to whether service on Ali Ali was 
sufficient to constitute service on 4K Smoke Shop. Local Rule (“LR”) 7.1 provides that “[f]ailure 
to timely respond to a motion may be grounds for granting the motion.” LR 7.1(c). Further, a party 
may to waive opposition to a motion to dismiss by “virtue of his failure to oppose [it].” Humphrey 
v. U.S. Att’y Gen. ’s Off., 279 F. App’x 328, 331 (6th Cir. 2008); see also Williams v. PBI Bank , 
No. 3:13-cv-1166-DJH-CHL, 2017 WL 6940699 , at *1, (W.D. Ky. Feb. 28, 2017) . Given GH 
Holistic’s lack of response and lack of support in the record, the Court cannot find that 4K Smoke 
Shop has been properly served. 
In the proof of service for Khalid, the process server indicates that he left the summons at 
the “residence or usual place of abode ”—not identifying the address of the location —with 
someone he identified as “Mr. Khalid’s brother, Name refused” on January 22, 2025. [DN 7.] 
Khalid submits an affidavit that he was not in the country on the date of alleged service and that 
he discovered a complaint and summons had been left at 9103 Talitha Drive, a location not his 
dwelling or usual place of abode. [DE 15-2 at 144]. Like 4K Smoke Shop, there is no evidence in 
the record that Khalid was properly served and GH Holistic did not respond , arguably waiving 
opposition to the motion to set aside entry of default . The Court cannot find that Khalid has been 
properly served. 
Having found Defendants not properly served, the Court must set aside the entry of default 
judgment, O.J. Distrib., 340 F.3d 345 at 353, and with no entry of default, GS Holistic’s Motion PageID #:
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for Default Judgment is moot. Devlin v. Kalm, 493 F. App’x 678, 685 (6th Cir. 2012) (holding a 
Clerk’s Entry of Default is a prerequisite to obtaining a default judgment). 
Fed. R. Civ. P. 4(m) states that “[i]f a defendant is not served within 90 days after the 
complaint is filed, the court—on motion or on its own after notice to the plaintiff —must dismiss 
the action without prejudice against that defendant or order that service be made within a specified 
time.” Fed. R. Civ. P. 4(m). The rule further provides: “But if the plaintiff shows good cause for 
the failure, the court must extend the time for service for an appropriate period. ” Defendants 
request in their motion that the matter be dismissed without prejudice because they submit emails 
demonstrating they alerted GS Holistic of the improper service long ago and argue that GS Holistic 
fails to show good cause for the failure to cure service. However, Defendants’ proposed tendered 
order requests 20 days from entry of this order to respond to the complaint. Given the 
circumstances, the Court will allow GS Holistic thirty (30) more days to provide proof of service 
of process. GS Holistic is warned that unless it serves defendants within thirty (30) days of the 
entry of this Order, the case will be dismissed under Fed. R. Civ. P. 4(m). 
IV. CONCLUSION
For the reasons above, and being otherwise sufficiently advised, THE COURT ORDERS 
as follows: 
(1) The Motion for Default Judgment [DE 13] is DENIED;
(2) The Motion to Set Aside Entry of Default [15] is GRANTED;
(3) Plaintiff shall have thirty days from the entry of this Order to serve the complaint and 
summonses upon the Defendants, or this action will be dismissed under Rule 4(m); 
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(4) Plaintiff is warned that failure to effectuate service of process upon defendants 
within thirty (30) days of the entry of this Order may result in its case being 
dismissed under Fed. R. Civ. P. 4(m).
June 17, 2026 PageID #:
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