United States District Court, N.D. California
ORDER GRANTING PETITIONERS' MOTION FOR DEFAULT
JUDGMENT AGAINST MOONVALE INVESTMENTS LIMITED RE: DKT. NO.
JEFFREY S. WHITE, UNITED STATES DISTRICT JUDGE.
before the Court is Petitioners' motion for default
judgment as to Respondent Moonvale Investments Limited
(“Moonvale”). The Court has considered
Petitioners' motion, the record in this case, and the
relevant legal authority, and the Court finds the motion
suitable for disposition without oral argument. See
N.D. Civ. L.R. 7-1(b). The Court VACATES the hearing
currently scheduled for November 17, 2017, and GRANTS
Petitioners' motion for default judgment.
background of this case is more fully laid out in the
Court's prior order granting Petitioners' petition to
confirm an arbitration award against Respondent Peter
Kiritchenko. See Dastime Group Ltd v. Moonvale
Investments Ltd., No. 17-cv-1859-JSW, 2017 WL 4712179
(N.D. Cal. Oct. 11, 2017). In short, Petitioners filed the
instant action seeking to confirm an arbitration award which
found Kiritchenko and Moonvale to be jointly and severally
liable to Petitioners for $5, 700, 132.10 in attorney's
fees. Kiritchenko appeared and filed a motion to vacate the
award, which has since been denied. See Id. at *9.
Moonvale, however, has not appeared.
23, 2017, the Court granted Petitioners' motion seeking
authorization for alternative service on Moonvale. (Dkt. No.
23.) The Court authorized service on Moonvale via service on
(1) Mr. Aleksander Gruzman, Esq. (Moonvale's attorney at
the underlying arbitration); and (2) Moonvale's
registered agent. (Id. at 4.) Consistent with this
order, Petitioners served Moonvale in May 2017. (Dkt. Nos.
24, 26.) On June 30, 2017, the Clerk entered default as to
Moonvale. (Dkt. No. 36.)
assessing the merits of a motion for default judgment, a
court must confirm that it has subject matter jurisdiction
over the case, personal jurisdiction over the parties, and
that service was sufficient. See In re Tuli, 172
F.3d 707, 712 (9th Cir. 1999). Here, the Court has
jurisdiction over this action under 9 U.S.C. § 203, as
this action involves an arbitral award that falls under the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards. Further, the Court finds that it has
personal jurisdiction over Moonvale (a British Virgin Islands
corporation). This action seeks to confirm an arbitration
award that resulted from an arbitration Moonvale itself
brought in California. Further, this arbitration was brought
pursuant to an agreement in which Kiritchenko (Moonvale's
assignor) consented to the jurisdiction of the “state
and federal courts located in California.” Finally,
regarding the propriety of service, the record reflects that
Petitioners have served Moonvale consistent with the
Court's order authorizing alternative service.
assessing the merits of a motion for default judgment, the
Court considers the following factors:
(1) the possibility of prejudice to the plaintiff, (2) the
merits of plaintiff's substantive claim, (3) the
sufficiency of the complaint, (4) the sum of money at stake
in the action[, ] (5) the possibility of a dispute concerning
material facts[, ] (6) whether the default was due to
excusable neglect, and (7) the strong policy underlying the
Federal Rules of Civil Procedure favoring decision on the
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986) (citation omitted).
Petitioners will be prejudiced if default judgment is not
entered as to Moonvale. As discussed in the Court's prior
order, the Court is unable to enter judgment against
Respondent Kiritchenko until the claim against Moonvale is
resolved. See Dastime Group, 2017 WL 4712179, at *9.
Moonvale has apparently refused to appear in this action and
oppose confirmation of the arbitral award. Accordingly,
without entry of default judgment, Petitioners will be denied
confirmation of the award.
the merits of Petitioners' “claim” and
sufficiency of the petition, by its prior Order the Court
confirmed the arbitration award as to Kiritchenko and refused
to vacate that award. Based on the Court's review of the
record, the underlying agreement, and the arbitration award,
the Court sees no basis for refusing confirmation of the
award. The record reflects that Kiritchenko entered into a
valid arbitration agreement and Moonvale, as
Kiritchenko's assignee, instituted the arbitration award
pursuant to that agreement. Accordingly, these factors
support entry of default judgment.
while the arbitration award involves a large sum of money
(over $5 million), this factor does not weigh against entry
of default judgment given the nature of the action and the
arbitrator's findings regarding Petitioners'
entitlement to attorney's fees. Cf. Lehman Bros
Holdings, Inc. v. Bayporte Enters., Inc., No.
11-cv-0961, 2011 WL 61410279, at *7 (N.D. Cal. Oct. 7, 2011)
(“[T]he amount must not be disproportionate to the harm
there is a low likelihood of any dispute as to material facts
given the nature of this action and Moonvale's apparent
unwillingness to appear and challenge the arbitration award.
Cf. Todd v. Shipyards Corp. v. Cunard Lines, Ltd.,
943 F.2d 1056, 1060 (9th Cir. 1991) (noting that ...