Levy v. Singularity Future Technology Ltd.

Filing 13

OPINION & ORDER denying without prejudice plaintiff's 9 Motion for Default Judgment. Plaintiff is granted 30 days to file an amended complaint. ( Ordered by Judge Nina Gershon on 5/8/2024 ) (RG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN F. LEVY,
Plaintiff,
-against-

OPINION & ORDER
24-cv-0384-NG-JMW

SINGULARITY FUTURE TECHNOLOGY
LTD. F/K/A SINO-GLOBAL SHIPPING
AMERICA LTD.,
Defendant.
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GERSHON, United States District Judge:
Before the court is a motion for default judgment by Plaintiff John F. Levy (“Levy”) against
Defendant Singularity Future Technology Ltd. f/k/a Sino-Global Shipping America Ltd.
(“Singularity”) for failure to appear or defend against Levy’s claim for reimbursement and
advancement of reasonable legal fees, costs, and expenses incurred in connection with defending
the action captioned Crivellaro v. Singularity Future Technology Ltd., 22-cv-7499-BMC
(E.D.N.Y. Dec. 9, 2022) (the “Securities Action”), in which Levy is named as an individual
defendant. For the reasons set forth below, Levy’s motion for default judgment is denied without
prejudice.
This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) because Levy is
a citizen of New Jersey and Singularity is a Virginia corporation with its principal place of business
in New York, and the amount in controversy exceeds $75,000.
I.

BACKGROUND

The facts stated here are drawn from the Complaint and taken as true. Singularity is a Virginia
public corporation that, at different times, has held itself out as a shipping and freight business and
a crypto-mining business. Compl. ¶¶ 2-3, 14. The Complaint describes Levy as a former

independent director on Singularity’s Board of Directors. Id. ¶¶ 1, 12. In May 2022, a short-seller
report was released alleging that, among other things, Singularity engaged in criminal and
fraudulent conduct orchestrated by its then-CEO Yang Jie. Id. ¶¶ 22-23; Declaration of John F.
Levy (“J. Levy Decl.”) Ex. 7. In response to these allegations, Singularity’s Board formed a
Special Committee comprised of Levy and another independent director to investigate the claims.
Compl. ¶¶ 24, 26. The Special Committee retained Blank Rome LLP, which is also Levy’s counsel
in this action and in the Securities Action. Id. ¶¶ 25, 56. The investigation resulted in the
resignation and termination of executives at Singularity. Id. ¶ 27. There were no adverse findings
with respect to Levy. Id. ¶ 29. Once the Special Committee’s investigation concluded, the Board
approved its dissolution, and Levy resigned from his position as director. Id. ¶ 28.
While the investigation was pending, the Securities Action, brought on behalf of a proposed
class of investors of Singularity, was filed. Id. ¶ 31; J. Levy Decl. Ex. 14. The Second Amended
Complaint in the Securities Action (“Securities Action SAC”) alleges, among other things, that
the “Individual Defendants, [including Levy], who are or were the senior officers and/or directors
of the Company, had actual knowledge of the material omissions and/or the falsity of the material
statements . . . , and intended to deceive Plaintiffs and the other members of the proposed
Class . . . .” Securities Action SAC ¶ 313.
Under certain circumstances, Singularity’s Articles of Incorporation provide for
indemnification, reimbursement, and advancement of reasonable legal fees for current and former
officers and directors. Article VI.3 lays out the requisite “standard of conduct” for an officer or
director to be entitled to indemnification:
The Corporation shall indemnify(a) [sic] any person who was, is or may become a
party to any proceeding, including a proceeding brought by a shareholder in the
right of the Corporation or brought by or on behalf of shareholders of the
Corporation, by reason of the fact that he is or was a director or officer of the
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Corporation, or (b) any director or officer who is or was serving at the request of
the Corporation as a director, trustee, partner or officer of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, against
any liability incurred by him in connection with such proceeding unless he engaged
in willful misconduct or a knowing violation of criminal law.
Compl. ¶ 43. Unless ordered by a court, the Corporation will make a determination in each case
that the “standard of conduct” described in Article VI.3 has been met. Id. at ¶ 44; Article VI.6. If
the officer or director seeks advancement of legal fees, Article VI.7.a provides that the officer or
director must provide “(1) a written statement of the applicant’s good faith belief that he or she
has met the standard of conduct described in Section 3; and (2) a written undertaking, executed
personally or on the applicant’s behalf: to repay the advance if it is ultimately determined that the
applicant did not meet such standard of conduct.” Compl. ¶ 45. Article VI.7.b specifies that “[t]he
undertaking . . . shall be an unlimited general obligation of the applicant but need not be secured
and may be accepted without reference to financial ability to make repayment.” Id.
Levy alleges that he has made “numerous written and verbal demands upon Singularity
pursuant to Article VI.7 for indemnification and reimbursement of his reasonable legal fees and
expenses incurred in the Securities Action.” Id. ¶ 69. He also alleges that he “has confirmed to
Singularity that (i) he has a good faith belief that he has met the standard of conduct described in
Article 3 of the Articles of Incorporation; and (ii) offered to enter into, and presented an objectively
reasonable undertaking to Singularity to repay the advance if it ultimately is determined that Mr.
Levy did not meet such standard of conduct.” Id. Singularity has refused Levy’s demands
because, as alleged, “Blank Rome LLP has a conflict in representing Mr. Levy in the Securities
Action.” Id. ¶ 57. Levy denies that Blank Rome LLP has any conflict. Id. ¶ 59. He asserts that
the purported conflict is “a pretext because Singularity seeks retribution against Mr. Levy and
Blank Rome LLP because the Special Committee’s investigation of allegations in the [short-seller

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report] led to resignations and terminations of certain Singularity officers.” Id. ¶ 58. Further,
Singularity has not accused Levy of any misconduct or wrongdoing. Id. ¶ 30.
As a result of Singularity’s refusal to reimburse Levy, on January 18, 2024, Levy filed this
action. Singularity was timely served with copies of the summons and complaint, but Singularity
failed to answer or respond. On February 22, 2024, the Clerk entered a certificate of default against
Singularity. On February 29, 2024, Levy filed the instant motion seeking default judgment.
II.

DEFAULT JUDGMENTS
Rule 55 of the Federal Rules of Civil Procedure prescribes a two-step process to obtain a

default judgment against a party who fails to defend. First, when “a party against whom a
judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a).
Second, after a default has been entered against a defendant, and the defendant fails to appear or
move to set aside the default under Rule 55(c), the plaintiff “must apply to the court for a default
judgment.” Fed. R. Civ. P. 55(b)(2).
In light of the Second Circuit’s “oft-stated preference for resolving disputes on the merits,”
Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95-96 (2d Cir. 1993), a “court’s decision to enter a
default judgment against [a] defendant[] does not by definition entitle plaintiff[] to an entry of a
default judgment.” Bricklayers & Allied Craftworkers Local 2, Albany, N.Y. Pension Fund v.
Moulton Masonry & Const., LLC, 779 F.3d 182, 187 (2d Cir. 2015). “Rather, the court may, on
plaintiff[’s] motion, enter a default judgment if liability is established as a matter of law when the
factual allegations of the complaint are taken as true.” Id. Once a defendant is found to be in
default, it is deemed to have admitted all the well-pleaded allegations in the complaint pertaining
to liability. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011).

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III.

DISCUSSION
To date, Singularity has failed entirely to participate in this action. Having defaulted,

Singularity is deemed to have admitted all the well-pleaded facts in the Complaint.
Levy alleges that Singularity breached Article VI of its Articles of Incorporation by
refusing to reimburse and advance him reasonable legal costs for defending the Securities Action.
To state a claim for breach of contract under Virginia law, a plaintiff must allege three elements:
“(1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant’s violation or
breach of that obligation; and (3) resulting injury or harm to the plaintiff.” Enomoto v. Space
Adventures, Ltd., 624 F. Supp. 2d 443, 449 (E.D. Va. 2009).1
Levy alleges that, under Article VI of Singularity’s Articles of Incorporation, Singularity
is obligated to reimburse the reasonable legal fees incurred by him, as a former director who is a
party to the Securities Action by reason of the fact that he was a director of Singularity, in advance
of the final disposition of the Securities Action or before a determination is made as to whether
indemnification is proper. Compl. ¶¶ 65-72.
Levy has adequately pleaded that he is a defendant in the Securities Action by reason of
his position as former director of Singularity. See id. ¶¶ 40-41. A proceeding is brought against a
director or officer in a “corporate capacity” where “there is a nexus or causal connection
between . . . the underlying proceeding[] . . . and one’s corporate capacity.” Truth Tech., Inc. v.
Arnold, 2017 WL 8772045, at *2 (E.D. Va. Oct. 30, 2017); Roller Bearing Indus., Inc. v. Paul,
2010 WL 1257715, at *2 (W.D. Ky. Mar. 26, 2010) (applying Virginia law). The complaint in the
Securities Action describes Levy as “a [former] Director of Singularity . . . , and, during his tenure,

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Levy relies on Virginia law on the ground that Singularity is a Virginia corporation. Since
Singularity did not respond, the court applies Virginia law.
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as a Chair of the Company’s Compensation Committee and a member of its Corporate Governance
and Auditing Committees.” Securities Action SAC ¶ 35. It alleges, among other things, that Levy
did not disclose material facts to investors in violation of federal securities laws. See, e.g., id.
¶¶ 69, 74, 96-99, 220-221. It also alleges that “all of the wrongful acts complained of . . . were
carried out within the scope of the Individual Defendants’ and the Company employees’
employment.” Id. ¶ 38. Accordingly, there is a clear nexus between the allegations in the
Securities Action and Levy’s former position as director of Singularity.
However, Levy does not establish liability because he has not alleged that he met both
requirements in Article VI.7 that would entitle him to advancement. Levy has demonstrated that
he satisfied Article VI.7’s first requirement of a written statement of his good faith belief that he
meets the “standard of conduct” in Article VI.3, but has not adequately alleged that he meets the
second requirement, namely, to provide Singularity with a written undertaking. The October 31,
2023 letter appended to Levy’s motion for default judgment expressly states his good faith belief,
but then provides only that he “will enter into an undertaking.” J. Levy Decl. Ex. 16 (emphasis
added). The letter does not state that he was, at that time, making the undertaking. And, the
Complaint alleges only that Levy “offered to enter into, and presented an objectively reasonable
undertaking to Singularity.” Compl. ¶¶ 69, 82. Allegations of “offering to enter into” and
“presenting” an undertaking do not expressly allege that he provided Singularity with the specified
undertaking in writing. Thus, because Levy has not adequately pleaded that he provided the
requisite written undertaking, he has failed to establish liability as a matter of law.2

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Because Levy has failed to adequately allege that he met the requirements under the Articles of
Incorporation for advancement, he has also failed to establish under the Virginia Stock Corporation
Act that he is entitled to the reasonable expenses incurred in bringing this action. See VA. CODE
ANN. §§ 13.1-700.1, 13.1-704.
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IV.

CONCLUSION

For the foregoing reasons, Levy’s motion for default judgment is denied without prejudice.
Levy is granted 30 days to file an amended complaint.

SO ORDERED.

/S/
NINA GERSHON
United States District Judge
Dated: May 8, 2024
Brooklyn, New York

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