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Million Ltd. v. Lincoln Provision Inc. USA

August 27, 2010

MILLION (FAR EAST) LTD., A FOREIGN COMPANY, PLAINTIFF,
v.
LINCOLN PROVISION INC. USA, A CORPORATION AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANT.
LINCOLN PROVISION INC. USA, THIRD PARTY PLAINTIFF,
v.
PHILIP WOLFSTEIN, VITECK INTERNATIONAL CORP., AND ROES 1 THROUGH 50, INCLUSIVE THIRD PARTY DEFENDANTS



The opinion of the court was delivered by: Honorable Manuel L. Real United States District Judge

ORDER GRANTING DEFAULT JUDGMENT AND JUDGMENT Date: August 23, 2010 Time: 10:00 a.m. Judge: Hon. Manuel L. Real Place: 312 North Spring Street Courtroom 8 Los Angeles, CA 90012 Discovery Cut-Off: April 9, 2010 Trial Date: May 18, 2010

On August 23, 2010, Third-Party Plaintiff Lincoln Provision Inc. USA's ("Lincoln") Motion for Default Judgment against Third-Party Defendants Philip Wolfstein and Viteck International Corp. (collectively, "Third-Party Defendants") was heard by the Court. Based upon the Court's full consideration of the record including the Third Party Complaint, the prior entry of Default, the pleadings, memoranda, declarations and moving papers in support of Lincoln's Motion for Default against Third-Party Defendants and in support of Third Party Defendant Philip Wolfstein's Motion to Set Aside Entry Of A Default Judgment, the documents presented therein and throughout this action, and the oral arguments and documents submitted at the hearing, the Court finds that:

WHEREAS Third-Party Defendants were properly served in this action but have not responded to the Third Party Complaint, and they have not otherwise appeared in this action prior to the entry of Default;

WHEREAS Lincoln has met all the conditions necessary for entry of default judgment pursuant to Federal Rules of Civil Procedure 55 and Local Rule 55;

WHEREAS the Third Party Complaint contains well-pled charges of Third-Party Defendants' breach of contract, negligent misrepresentation and fraud, and Lincoln is entitled to a favorable liability determination on its claims;

WHEREAS Third Party Defendant Viteck has not filed an opposition to the Motion for Default Judgment;

WHEREAS Third Party Defendant Philip Wolfstein's Motion to Set Aside Entry Of A Default Judgment fails to set forth good cause under Federal Rules of Civil Procedure 55(c) to set aside the entry of default in that Wolfstein has engaged in culpable conduct that led to the entry of default including receiving but failing to respond to constructive notice of lawsuit in the form of emails that included pleadings and correspondence related to the case, that Wolfstein has failed to set forth meritorious defense, and that Lincoln will be prejudiced if Default is set aside;

WHEREAS based on the pleadings, evidence, and papers submitted, Lincoln is entitled to damages under the California Uniform Commercial Code §§ 2713(1), 2715(1) and 2715(2)(a) including the difference between the market price and contract price and consequential damages including lost profits, the amount of liability owed to Lincoln's customer, anticipated lost profits and loss of good will directly and proximately caused by Third-Party Defendants' breach of the contract;

WHEREAS Lincoln also is entitled to the amount that will compensate for all of the detriment proximately caused by Third Party Defendants' fraud and negligent misrepresentation including its lost profits, the amount of liability owed to Lincoln's customer and Plaintiff Million (Far East) Ltd., anticipated lost profits and loss of good will;

WHEREAS Lincoln is entitled to costs pursuant to Cal. Civ. Proc. § 1033; WHEREAS Lincoln is entitled to prejudgment interest calculated at calculated at ten percent per annum pursuant to Cal. Civ. Code §§ 3287(b) and 3289(b) from the date the Third Party Complaint was filed on October 22, 2009 until judgment; and

WHEREAS Lincoln is entitled to post-judgment interest pursuant to 28 U.S.C. § 1961(a) at the rate of ______, the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.

For the foregoing reasons, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:

Lincoln's Motion for Default Judgment is hereby granted and Default Judgment is entered in favor of Lincoln in the amount of one million and two hundred fifty six thousand dollars, eight hundred sixty dollars and fifty cents ($1,256,860.50), consisting of the following which shall be paid to ...


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