Wingen et al v. Ventrum Energy Corp. et al
Filing
181
ORDER. IT IS ORDERED, ADJUDGED, and DECREED that 176 plaintiffs' motion for default judgment be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that plaintiffs are entitled to $1,782,258 in damages. IT IS FURTHER ORDERED that plaintiffs shall submit a proposed judgment consistent with the foregoing within fourteen (14) days of this order. Signed by Judge James C. Mahan on 11/13/2019. (Copies have been distributed pursuant to the NEF - ADR)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
9
***
10
11
PHILIP WINGEN, et al.,
Case No. 2:15-CV-2043 JCM (VCF)
12
Plaintiff(s),
13
14
ORDER
v.
VENTRUM ENERGY CORP., et al.,
15
Defendant(s).
16
17
18
Presently before the court is plaintiffs Karen and Phillip Wingen’s (“plaintiffs”) motion for
default judgment. (ECF No. 176).
19
Plaintiffs initiated this action on October 22, 2015. (ECF No. 1). Ventrum Energy Corp.
20
(“Ventrum”), Salt Creek West Drilling Fund, LLP (“SCWDF”), Ventrum Louisiana LLP
21
(“Ventrum LA”), Mackel America Corp. (“MAC”), NV America Corp. (“NVAC”), Andrew T.
22
Van Slee (“Van Slee”), Mary E. Hill (“Hill”), and Danial Hassanpoor (“Hassanpoor”) all remain
23
as defendants in this action.
24
Default judgment is appropriate “[w]hen a party against whom a judgment for affirmative
25
relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
26
otherwise.” Fed. R. Civ. P. 55(a).
27
...
28
James C. Mahan
U.S. District Judge
Obtaining a default judgment is a two-step process:
1
2
First, the party seeking a default judgment must file a motion for
entry of default with the clerk of a district court by demonstrating
that the opposing party has failed to answer or otherwise respond to
the complaint, and, second, once the clerk has entered a default, the
moving party may then seek entry of a default judgment against the
defaulting party.
3
4
5
6
See UMG Recordings, Inc. v. Stewart, 461 F. Supp. 2d 837, 840 (S.D. Ill. 2006).
7
Here, the first step has been satisfied. The clerk entered default against Ventrum, SCWDF,
8
Ventrum LA, MAC, and NVAC on February 1, 2016. (ECF No. 89). The clerk entered default
9
against Van Slee on April 4, 2016. (ECF No. 100). The clerk entered default against Hill on July
10
10, 2017. (ECF No. 133). Finally, on March 7, 2019, the court granted plaintiffs’ motion for entry
11
of default, and the clerk entered default against Hassanpoor. (ECF Nos. 164; 165).
12
Plaintiffs now move the court to enter default judgment against all the defendants. Because
13
the clerk has entered a default against all remaining defendants, the only thing before the court is
14
the calculation of damages.
15
“The general rule of law is that upon default the factual allegations of the complaint, except
16
those relating to the amount of damages, will be taken as true.” Geddes v. United Fin. Group, 559
17
F.2d 557, 560 (9th Cir. 1977) (citing Pope v. United States, 323 U.S. 1, 12 (1944)). Entry of a
18
default judgment for money is appropriate without a hearing if “the amount claimed is a liquidated
19
sum or capable of mathematical calculation.” Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir.
20
1981).
21
Plaintiffs’ tenth cause of action alleges racketeering in violation of Nevada Revised Statute
22
(“NRS”) § 207.400. (ECF No. 1 at 72–76). NRS 207.470(1) provides that “[a]ny person who is
23
injured in his or her business or property by reason of any violation of NRS 207.400 has a cause
24
of action against a person causing such injury for three times the actual damages sustained.”
25
Nev. Rev. Stat. § 207.470 (emphasis added).
26
The Nevada Supreme Court has acknowledged that “[t]he similarities between NRS
27
§ 207.470(1) and 18 U.S.C. § 1964(c) are clear.” Allum v. Valley Bank of Nevada, 849 P.2d 297,
28
301 n.5 (Nev. 1993); Hale v. Burkhardt, 764 P.2d 866. 867 (Nev. 1988). The court finds that the
James C. Mahan
U.S. District Judge
-2-
1
Nevada Supreme Court’s acknowledged similarities between Nevada and federal RICO warrant
2
similar treatment of the statutes.
3
Pursuant to the federal RICO statute, 18 U.S.C. § 1964(c), the court is required to treble
4
damages. See e.g., Monex Deposit Co. v. Gilliam, No. SACV09287JVSANX, 2010 WL 2380873,
5
at *3 (C.D. Cal. May 24, 2010) (“The [c]ourt agrees that it must treble the $613,350 in
6
compensatory damages because of Monex’s RICO claim.” (citing 18 U.S.C. § 1964(c))); see also
7
Genty v. Resolution Trust Corp., 937 F.2d 899, 914 (3d Cir. 1991) (noting RICO’s “mandatory
8
provision for treble damages” (emphasis in original)); Jones v. Phipps, 39 F.3d 158, 161 (7th Cir.
9
1994) (upholding default judgment that was trebled from $310,991.40 to $932,974.20 pursuant to
10
11
12
18 U.S.C. § 1964(c))).
Accordingly, the court finds that plaintiffs are entitled to treble damages under NRS
207.470.
13
Plaintiffs provide a detailed account of the evidence that plaintiffs represent would have
14
been admitted at a trial on this matter. (See ECF No. 176 at 19–39). This evidence includes an
15
ongoing pattern of material misrepresentations and omissions: defendants allegedly overstated,
16
among other things, the production of certain oil wells, the experience of its managers, and the
17
expected return on investment while downplaying or entirely omitting information regarding the
18
risk associated with the venture, the ownership interests in the venture, and the assets held by the
19
venture. Id.
20
With the exception of Hassanpoor, defendants have failed to appear in the instant action.
21
Hassanpoor has failed to appear in this action since he filed an answer to plaintiffs’ complaint on
22
February 2, 2016: he failed to respond or participate in this action, despite repeated attempts by
23
plaintiffs and the court. (See ECF Nos. 150; 151 at 5). Thus, the court finds it appropriate to grant
24
the plaintiffs’ motion for default judgment.
25
However, plaintiffs do not provide any explanation or accounting of their damages.
26
Plaintiffs do not provide any details regarding the attorneys’ fees and costs they have incurred
27
litigating the instant action. Instead, they request that the court grant their motion for default
28
James C. Mahan
U.S. District Judge
-3-
1
judgment, enter a default judgment against the defendants, and “enter an accounting of their
2
damages.” (ECF No. 174 at 39).
3
The only evidence before the court is plaintiffs’ allegation that they made a total investment
4
of $500,000 in SCWDF and a $100,000 investment in Ventrum LA. (ECF Nos. 1 at 23–24; 176
5
at 37). Plaintiffs’ complaint requests an award of compensatory damages “at least in the amount
6
of $594,086.” (ECF No. 1 at 83). Thus, the court can determine only that plaintiffs are entitled to
7
$1,782,258, which is triple their actual damages of $594,086.
8
Accordingly,
9
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiffs’ motion for
10
default judgment (ECF No. 176) be, and the same hereby is, GRANTED.
11
IT IS FURTHER ORDERED that plaintiffs are entitled to $1,782,258 in damages.
12
IT IS FURTHER ORDERED that plaintiffs shall submit a proposed judgment consistent
13
14
15
16
with the foregoing within fourteen (14) days of this order.
DATED November 13, 2019.
__________________________________________
UNITED STATES DISTRICT JUDGE
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?