Quals et al v. Lunn et al

Filing 28

ORDER GRANTING PLAINTIFF HYBRID FINANCE, LTD'S SECOND MOTION FOR DEFAULT JUDGMENT 25 . By Judge Robert E. Blackburn on 6/6/12.(mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-1453-REB-KMT
DERRICK a. QUALS,
HYBRID FINANCE, LIMITED,
an Israeli company,
and F CUBED.ca INVESTMENTS, LIMITED
a Canadian company,
Plaintiffs,
v.
WGC GROUP, INC.
a Nevada company,
GEOFFREY H. LUNN,
MICHAEL SCHMIDT,
and VINCENT CURRY
Defendants.

ORDER GRANTING PLAINTIFF HYBRID FINANCE, LTD’S
SECOND MOTION FOR DEFAULT JUDGMENT
Blackburn, J.
The matter before me is Plaintiff Hybrid Finance, Ltd.’s Second Motion for
Default Judgment [#25]1 filed March 19, 2012. I grant the motion.
I have jurisdiction over this case pursuant to 28 U.S.C. § 1332 (diversity of
citizenship). Plaintiff duly served the corporate defendant WGC Group Inc. in
1

“[#25]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

accordance with Fed. R. Civ. P. 4(h)(1)(B), and the individual defendants Vincent Curry
and Geoffrey Lunn as required by Fed. R. Civ. P. 4(e)(2)(a).2 Defendants have failed to
answer or otherwise respond within the time permitted by law, and thus have admitted
the factual allegations of the complaint other than those relating to damages. See FED.
R. CIV. P. 8(d); see also Burlington Northern Railroad Co. v. Huddleston, 94 F.3d
1413, 1415 (10th Cir. 1996). Entry of default pursuant to Fed. R. Civ. P. 55(a) was made
by the clerk of the court on July 13, 2011, as to WGC and Lunn [#13], and on July 25,
2011, as to Curry [#18]. Plaintiff therefore is entitled to default judgment against these
defendants pursuant to Fed. R. Civ. P. 55(b).
Of the various theories of recovery plead in the complaint, I find and conclude
that the averments of fact in the complaint are sufficient to establish the elements of
unjust enrichment under Colorado law, that is, that defendants received a benefit, at the
plaintiff’s expense, under circumstances that would make it unjust for defendants to
retain the benefit. Jorgensen v. Colorado Rural Properties, LLC, 226 P.3d 1255,
1258 (Colo. App. 2010).3 Essentially, unjust enrichment allows for restitution under
circumstances where the benefit to the defendant was derived to the unfair detriment of
the plaintiff. See Bolsa Resources, Inc. v. AGC Resource, Inc., 2011 WL 6370409 at
*4 (D. Colo. Dec. 20, 2011.)
Plaintiff thus seeks to recover the $250,000 it invested in the fraudulent scheme
perpetuated by defendants. I find and conclude that plaintiff is entitled to this amount as

2

It appears from the docket that named defendant Michael Schmidt has never been served.

3

However, the averments of fact in the complaint are not sufficient to establish plaintiff’s claims
for breach of contract or civil theft.

2

damages. Plaintiff also is entitled to pre-judgment interest from the date defendants
wrongfully withheld funds, that is, December 1, 2010,4 until the date of payment or the
date judgment is entered, whichever occurs first. See §5-12-102(1)(b), C.R.S. See also
Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821, 825 (Colo. 2008). In addition,
plaintiff is entitled to post-judgment interest and costs as provided by law.
THEREFORE, IT IS ORDERED as follows:
1. That Plaintiff Hybrid Finance, Ltd.’s Second Motion for Default Judgment
[#25] filed March 19, 2012, is GRANTED;
2. That default judgment SHALL ENTER on behalf of plaintiff F Cubed.ca
Investments Limited, a Canadian company, against defendants WGC Group Inc., a
Nevada corporation, Geoffrey H. Lunn, and Vincent Curry on plaintiff’s claim for relief for
unjust enrichment;
3. That plaintiff is AWARDED damages against defendants WGC Group Inc.,
Geoffrey H. Lunn, and Vincent Curry, jointly and severally, in the amount of $250,000;
4. That plaintiff is AWARDED pre-judgment interest on the principal amount set
forth in paragraph 3 above at the rate of eight per cent (8%) per annum, compounded
annually, from December 1, 2010, until the date of payment or the date of judgment,
whichever first occurs;

4

Although plaintiff requests that pre-judgment interest run from “October, 2010,” the evidence
establishes that the $250,000 was wired to Curry on October 28, 2010. The “anticipated payout” date
reflected in the documents evidencing the transaction was November 30, 2010. (Plf. Motion App.,
Berenholtz Decl., Exh. 4 at 2.) Thus, the funds were not wrongfully withheld, as required by § 5-12102(1)(b), until after this deadline passed, or December 1, 2010.

3

5. That plaintiff further is AWARDED post-judgment interest as provided by 28
U.S.C. § 1961 on the principal amount set forth in paragraph 3 above from the date of
this order until the judgment is paid in full; and
6. That plaintiff is AWARDED its costs, to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated June 6, 2012, at Denver, Colorado.
BY THE COURT:

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