Winer et al v. Eagle Bullion Group, Inc. et al

Filing 42

ORDER Granting 39 Plaintiffs' Motion to Confirm Arbitration Award and Denying 40 Plaintiffs' Motion for Entry of Default. Signed by Chief Judge Gloria M. Navarro on 06/13/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LEO WINER and MICHAEL J. PEPITONE, )
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Plaintiffs,
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vs.
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EAGLE BULLION GROUP, INC., ERIC
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WEIGAND, MD; YOUNG FINANCIAL
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INC.; INTEGRITY CAPITAL HOLDINGS )
CO.; MICHAEL D. YOUNG; TERRY
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SACKA; and SIDNEY SACKA,
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Defendants.
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Case No.: 2:11-cv-01268-GMN-VCF
ORDER

Pending before the Court is the Motion to Confirm Arbitration Award (ECF No. 39)

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filed by Plaintiffs Leo Winer and Michael J. Pepitone (“Plaintiffs”). Also pending before the

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Court is Plaintiffs’ Motion for Entry of Default. (ECF No. 40.) Defendants failed to file a

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Response to either of these pending motions.

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I.

BACKGROUND

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Plaintiffs initiated this action in 2011, alleging various violations of the federal

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Commodities Exchange Act and various violations of Nevada and Florida state law. (Compl.,

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ECF No. 1.) On November 1, 2011, this Court granted Defendants’ Motion to Compel

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Arbitration. (Order, ECF No. 27.) At the conclusion of the arbitration proceedings, the

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arbitration panel awarded $34,692.32 to Plaintiff Winer and $48,321.20 to Plaintiff Pepitone,

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plus interest from August 31, 2010. (Mushkin Decl., Ex. 1, ¶¶ 9–10, ECF No. 39-2.) The

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arbitration award was served on all parties via email on August 21, 2013. (Id., Ex. 3, ECF No.

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39-3.) A short time thereafter, Plaintiffs filed a motion in this Court requesting that the Court

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enter an order confirming the arbitration award. (ECF No. 39.)

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II.

MOTION TO CONFIRM ARBITRATION AWARD
The Federal Arbitration Act (“FAA”) requires that, whenever “a party seeks a judicial

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order confirming an arbitration award, ‘the court must grant such an order unless the award is

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vacated, modified, or corrected . . . .’” Kyocera Corp. v. Prudential-Bache Trade Servs., Inc.,

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314 F.3d 987, 997 (9th Cir. 2003) (quoting 9 U.S.C. § 9). The FAA permits vacatur of an

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arbitration award only when “the award was procured by corruption, fraud, or undue means”;

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“there was evident partiality or corruption in the arbitrators”; “the arbitrators were guilty of

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misconduct”; or “where the arbitrators exceeded their powers.” 9 U.S.C. § 10(a)(1)–(4). The

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FAA authorizes a court to modify an arbitration award only when “there was an evident

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material miscalculation of figures or an evident material mistake in the description of any

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person, thing, or property referred to in the award”; “the arbitrators have awarded upon a matter

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not submitted to them”; or “the award is imperfect in matter of form not affecting the merits.” 9

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U.S.C. § 11(a)–(c).

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Defendants have not filed any motion seeking to vacate or modify the arbitration award.

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Similarly, Defendants failed to file an opposition to Plaintiffs’ Motion.1 Accordingly, the Court

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finds no basis on which to vacate, modify, or correct this arbitration award. Thus, the FAA

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requires that the Court GRANT Plaintiffs’ Motion to Confirm Arbitration Award. See 9 U.S.C.

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§ 9.

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III.

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MOTION FOR ENTRY OF DEFAULT
Plaintiffs also filed a motion requesting that the Court enter default against Defendants

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in this action because of Defendants’ failure to pay the arbitration award. (Mot. for Default,

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ECF No. 40.) The Court first recognizes that Plaintiffs’ Motion lacks any citation to case law

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The Court also notes that Rule 7-2(d) of the Local Rules of Practice of the United States District Court for the
District of Nevada provides that “[t]he failure of an opposing party to file points and authorities in response to
any motion shall constitute a consent to the granting of the motion.” D. Nev. R. 7-2(d). Therefore, under Local
Rule 7-2(d), by failing to file a Response to Plaintiffs’ Motion to Confirm Arbitration Award, Defendants have
consented to the granting of Plaintiffs’ Motion.

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or even a citation to Rule 55 of the Federal Rules of Civil Procedure. See D. Nev. LR 7-2(d)

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(“The failure of a moving party to file points and authorities in support of the motion shall

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constitute a consent to the denial of the motion.” (emphasis added)). Furthermore, under Rule

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55, an entry of default is appropriate only when a party “has failed to plead or otherwise

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defend.” Fed. R. Civ. P. 55(a). Based on Defendants’ past activity in this case, the Court

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cannot conclude that Defendants failed to plead or defend this action. An entry of default is not

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the appropriate remedy for Defendants’ failure to pay the arbitration award. Accordingly,

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Defendants’ Motion for Entry of Default (ECF No. 40) is DENIED.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Confirm Arbitration Award

(ECF No. 39) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Entry of Default (ECF No.
40) is DENIED.
DATED this 13th day of June, 2014.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

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