Securities and Exchange Commission v. Ascenergy LLC et al

Filing 89

DEFAULT JUDGMENT Granting 88 Motion for Default Judgment in favor of Securities and Exchange Commission against Pyckl LLC in the amount of $4,091,954.00. Signed by Chief Judge Gloria M. Navarro on 9/28/2018. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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SECURITIES AND EXCHANGE
COMMISSION,
Case No.: 2:15-cv-01974-GMN-PAL
Plaintiff,

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ASCENERGY LLC and
JOSEPH (a/k/a JOEY) GABALDON,
Defendants,

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FINAL JUDGMENT BY DEFAULT
AS TO RELIEF DEFENDANT
PYCKL LLC

vs.

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PYCKL LLC and ALANAH
ENERGY, LLC,
Relief Defendants.

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This matter came before the Court on the motion of Plaintiff Securities and Exchange
Commission (“the Commission”) seeking the entry of a Default Judgment for the relief requested

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in its Complaint against Relief Defendant Pyckl LLC (“Relief Defendant”) who has failed to
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answer or otherwise defend this action. The Court having considered the pleadings and
submissions on file herein makes the following findings of facts and conclusions of law:
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On October 13, 2015, the Commission filed its Complaint in this action against

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Relief Defendant among others. (ECF 1) Relief Defendant was served with Summons and

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Complaint on October 22, 2015, and proof of service was filed with the Court. (ECF 25)

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2.

Relief Defendant is not a minor, incompetent person, or currently in military

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service. Relief Defendant has failed to answer or otherwise defended the Complaint. On May
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26, 2017, the Clerk entered Default against Relief Defendant for failing to plead or otherwise
defend in this action. (ECF 87)
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3.

The Court has jurisdiction over this action and Relief Defendant. Based on Relief

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Defendant’s failure to deny the factual allegations in the Complaint or the evidence submitted

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with the Commission’s motion for entry of the default judgment, all factual allegations therein

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are hereby admitted against Relief Defendant.

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4.

The Court finds that Relief Defendant received $3,800,000 dollars of investor

funds from Ascenergy LLC to which it has no legitimate claim or right to retain. The Federal

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Bureau of Investigation previously seized approximately $514,278 of the funds from Relief
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Defendant or its owners or affiliates (the “Seized Funds”). The Commission is entitled to an

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Order requiring Relief Defendant to disgorge the $3,800,000 million plus prejudgment interest.

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Relief Defendant is entitled to a judgment credit for any of the Seized Funds that are finally

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released or forfeited.

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On the basis of the foregoing findings of fact and conclusions of law:

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I.

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Relief Defendant is
liable for disgorgement of $3,800,000 and prejudgment interest of $291,954, representing

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monies flowing to Relief Defendant from the conduct of Defendants Joseph Gabaldon and

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Ascenergy LLC described in the Complaint. Relief Defendant shall satisfy this obligation by

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paying $4,091,954 to the Securities and Exchange Commission within 14 days after entry of this

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Final Judgment. Relief Defendant’s disgorgement obligation shall be reduced by and to the

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extent any of the Seized Funds are finally forfeited or released to the United States Department
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of Justice.
Relief Defendant may transmit payment electronically to the Commission, which will

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provide detailed ACH transfer/Fedwire instructions upon request. Payment may also be made

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directly from a bank account via Pay.gov through the SEC website

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at http://www.sec.gov/about/offices/ofm.htm. Relief Defendant may also pay by certified check,

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bank cashier’s check, or United States postal money order payable to the Securities and

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Exchange Commission, which shall be delivered or mailed to

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Enterprise Services Center
Accounts Receivable Branch
6500 South MacArthur Boulevard
Oklahoma City, OK 73169

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and shall be accompanied by a letter identifying the case title, civil action number, and

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name of this Court; Pyckl LLC as a relief defendant in this action; and specifying that payment is
made pursuant to this Final Judgment.

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Relief Defendant shall simultaneously transmit photocopies of evidence of payment and
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case identifying information to the Commission’s counsel in this action. By making this

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payment, Relief Defendant relinquishes all legal and equitable right, title, and interest in such

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funds and no part of the funds shall be returned to Relief Defendant.

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The Commission shall hold the funds (collectively, the “Fund”) and may propose a plan
to distribute the Fund subject to the Court’s approval. Such a plan may provide that the Fund
shall be distributed pursuant to the Fair Fund provisions of Section 308(a) of the Sarbanes-Oxley

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Act of 2002. The Court shall retain jurisdiction over the administration of any distribution of the
Fund. If the Commission staff determines that the Fund will not be distributed, the Commission
shall send the funds paid pursuant to this Final Judgment to the United States Treasury.
The Commission may enforce the Court’s judgment for disgorgement by moving for civil
contempt (and/or through other collection procedures authorized by law) at any time after 14
days following entry of this Final Judgment. Relief Defendant shall pay post judgment interest

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on any delinquent amounts pursuant to 28 U.S.C. § 1961.
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II.

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IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this Court shall retain
jurisdiction of this matter for the purposes of enforcing the terms of this Final Judgment.

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III.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there being no just
reason for delay, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Clerk is

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ordered to enter this Final Judgment forthwith and without further notice.
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IT IS SO ORDERED.

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DATED this _______day of September, 2018.

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

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