United States District Court, E.D. Virginia, Alexandria Division
REPORT & RECOMMENDATION
Michael S. Nachmanoff, United States Magistrate Judge
matter comes before the Court on Plaintiff's Motion for
Default Judgment (Dkt. No. 13). Having reviewed the record
and pleadings, the undersigned Magistrate Judge recommends
entering default judgment in Plaintiff's favor for the
reasons that follow.
December 1, 2017, Plaintiff Bea Mountain Mining Corporation
(“BMMC”) filed a petition to confirm the final
arbitral award rendered on January 23, 2017 against Defendant
International Construction & Engineering (Seychelles)
(“ICE”) under the United Nations Convention for
the Recognition and Enforcement of Foreign Arbitral Awards
(“Convention”) (Dkt. No. 1). Plaintiff alleges
that both parties consented to arbitration regarding the
construction of the New Liberty Gold Mine, which is in
Liberia. Compl. ¶¶ 9-10, 12-13 (Dkt. No. 1). On
December 10, 2012, Plaintiff, “engaged in the business
of acquiring, exploring, developing[, ] and putting into
production mining projects, ” executed a contract with
Defendant for work involving the New Liberty Gold Mine.
Id. ¶¶ 17-18. Seven days later, the
project commenced. Id. ¶ 18. In September 2014,
due to changes to the project and its slow progress,
Plaintiff terminated the contract. Id. ¶ 19. In
response, on November 30, 2015, Defendant, represented by
counsel, submitted a request for arbitration. Id.
¶¶ 21-25, 28.
January 23, 2017, the Tribunal dismissed Defendant's
claims and issued an award to Plaintiff on its counterclaim
in the amount of $6, 990, 626.28, with interest compounded
quarterly at a rate of 2 percent until the date of payment,
as well as £2, 700, 000 in attorneys' fees and
costs. Id. ¶¶ 34, 36-39; Arbitral Award
¶¶ 10.10, 12.30, 14(2)-(3) (Dkt. No. 2-1).
Plaintiff has twice demanded payment from Defendant, once on
June 14, 2017 and again on July 7, 2017. Compl. ¶ 41;
Ex. 5 (Dkt. No. 2-5). Plaintiff now requests that this Court
confirm the arbitral award and enter judgment in the amount
of $6, 990, 626.28 plus interest at a rate of 2 percent,
compounded quarterly, from January 23, 2017 until payment;
£2, 700, 000 in fees and costs plus interest at a rate
of 2 percent, compounded quarterly, from January 23, 2017
until payment; and the costs of bringing this action. Compl.
December 18, 2017, Plaintiff's process server personally
served Defendant through Joseph M. Crane, Jr. (“Mr.
Crane”), Defendant's CEO and Managing Director and
sole shareholder, pursuant to Federal Rule of Civil Procedure
4(c), (e), and (h). See Crane Decl. ¶ 1 (Dkt.
No. 2-2); Register of Directors & Shares at 2-3, 5 (Dkt.
No. 2-3); Affidavit of Service (Dkt. No. 9). Defendant did
not file a response within 21 days of receipt (i.e.
January 8, 2018) (Dkt. Nos. 9-10, 13). On January 23, 2018,
the Clerk entered a default against Defendant (Dkt. No. 12).
On February 14, 2018, Plaintiff filed this Motion for Default
Judgment (Dkt. No. 13).
Service of Process, Jurisdiction, and Venue
docket reflects that Defendant has been properly served
pursuant to Federal Rule 4(h)(1)(B). See Affidavit
of Service (Dkt. No. 9); Pl.'s Mot. for Default J. at 1
(Dkt. No. 13); Connolly Decl. ¶ 7 (Dkt. No. 13-1). As
stated in the Complaint and the accompanying documents, Mr.
Crane is a resident of Alexandria, Virginia, which is in the
Eastern District of Virginia. See Compl. ¶ 4;
Register of Directors & Shares at 2-5 (Dkt. No. 2-3).
Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331 and 9 U.S.C. § 203, as this proceeding
arises under the United Nations Convention for the
Recognition and Enforcement of Foreign Arbitral Awards.
Compl. ¶¶ 1, 5. Moreover, the parties agreed that
an arbitration decision “may be made an order of any
Court of competent jurisdiction.” Id. ¶
6, at 3; Arbitral Award at 6 (Dkt. No. 2-4). Venue is proper
pursuant to 9 U.S.C. § 204 and 28 U.S.C. § 1391
because a substantial part of the events or omissions giving
rise to the claim against Defendant occurred within the
Eastern District of Virginia where Mr. Crane has his
residence, and/or Defendant has assets within this district
that are subject to enforcement of a final judgment.
See Compl. ¶¶ 7, 49; Bd. of Trs.,
Sheet Metal Workers Nat'l Pens. Fund v. McD Metals,
Inc., 964 F.Supp. 1040, 1045 (E.D. Va. 1997).
judgment is appropriate if the well-pled allegations of the
complaint establish that the plaintiff is entitled to relief
and the defendant has failed to plead or defend within the
time frame set out in the rules. Fed.R.Civ.P. 55; see
Music City Music v. Alfa Foods, Ltd., 616 F.Supp. 1001,
1002 (E.D. Va. 1985). By defaulting, the defendant admits the
plaintiff's well-pled allegations of fact, which then
provide the basis for judgment. See Partington v. Am.
Int'l Specialty Lines Ins. Co., 443 F.3d 334, 341
(4th Cir. 2006); Ryan v. Homecomings Fin. Network,
253 F.3d 778, 780 (4th Cir. 2001) (quoting Nishimatsu
Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200,
1206 (5th Cir. 1975)). Nevertheless, “‘[a] court
confronted with a motion for default judgment is required to
exercise sound judicial discretion in determining whether the
judgment should be entered, and the moving party is not
entitled to default judgment as a matter of
right.'” ReadyCap Lending, LLC v. Servicemaster
Prof'l Cleaning, Inc., No. 2:15-cv-451, 2016 WL
1714877, at *2 (E.D. Va. Apr. 12, 2016) (quoting EMI
April Music, Inc. v. White, 618 F.Supp.2d 497, 505 (E.D.
Va. 2009)). Here, because Defendant has not answered or
otherwise timely responded, the well-pled allegations of fact
contained in the Complaint are deemed to be admitted.
examined the record, the Magistrate Judge finds that the
well-pled allegations of fact contained in the Complaint-and
supported by Plaintiff's Motion for Default Judgment and
declarations-establish that Plaintiff received an arbitral
award against Defendant, which Defendant has yet to pay and
which is subject to enforcement in this Court. See