Stephenson v. El-Batrawi

• Decision Date: 30 April 2008
• Docket Number: No. 07-2074.,07-2074.
• Citation: 524 F.3d 907
• Parties: James P. STEPHENSON, in his capacity as Trustee for the Estate of MJK Clearing, Inc., Appellee, v. Ramy EL-BATRAWI, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

524 F.3d 907

James P. STEPHENSON, in his capacity as Trustee for the Estate of MJK Clearing, Inc., Appellee, v. Ramy EL-BATRAWI, Appellants.

No. 07-2074.

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2008.

Filed: April 30, 2008.

George B. Newhouse, argued, Los Angeles, CA, for appellant.

James Lloyd Volling, argued, Minneapolis, MN (Jessica R.F. Grassley, Minneapolis, MN, on the brief), for appellee.

Before WOLLMAN and SMITH, Circuit Judges, and GRITZNER,¹ District Judge.

GRITZNER, District Judge.

Ramy El-Batrawi (El-Batrawi) appeals the decisions of the district court denying El-Batrawi's motion to set aside default, granting a motion for default judgment in favor of the Trustee for the Estate of MJK Clearing, Inc. (MJK Trustee) and against El-Batrawi, and entering a money judgment against El-Batrawi in the amount of $67.5 million. We affirm in part, and remand for further proceedings regarding the determination of the damages.

I. BACKGROUND

The financial transactions underlying the claims herein are many, intricate and complex. For purposes of this appeal from the entry of default and a default judgment, the matter may be addressed in summary fashion from the allegations below.

MJK Clearing, Inc. (MJK) was a Minneapolis-based securities clearing company that entered into stock-loan transactions involving GenesisIntermedia, Inc. (GENI) stock. Stock lending involves a lending broker, who lends shares of stock to a borrowing broker, who in turn provides the lending broker cash collateral equal to the market value of the borrowed stock. If the price of the stock goes up while the stock is on loan to the borrowing broker, the borrowing broker must provide the lending broker with more cash collateral to cover the increase in price. Conversely, if the value of the stock goes down, the lending broker must return some of the cash collateral to the borrowing broker. This transfer of cash collateral based on the price of the stock is called "marking to the market."

GENI's primary focus was making infomercials and installing internet kiosks in shopping centers. El-Batrawi was the CEO, chairman of the board, and a major stockholder in GENI. The GENI stock-loan scheme commenced in the summer of 1999; GENI stock passed through several securities lending companies and ultimately landed at Deutsche Bank SL. In a typical GENI stock loan, El-Batrawi and Ultimate Holdings,² another major GENI shareholder, would lend GENI stock to Native Nations, which in turn loaned GENI stock to MJK; MJK in turn loaned GENI stock to other brokers/dealers, such as Maple Partners, which then loaned GENI stock to Deutsche Bank SL, where the GENI stock would remain. Deutsche Bank SL would give the brokers/dealers, such as Maple Partners, the cash collateral for the stock. The cash collateral would then pass down the chain through the other brokers/dealers, until it reached the hands of El-Batrawi and Ultimate Holdings.

As the GENI stock sat at Deutsche Bank SL, and thus out of public circulation, the perpetrators of the scheme would manipulate the price of the stock by offering the few remaining public shares. As the price of the stock increased, the brokers/dealers in the chain marked to market, sending more cash collateral down the chain to El-Batrawi and Ultimate Holdings.

In the market atmosphere following the September 11, 2001, terrorist attacks, the market rigging could no longer be sustained, forcing Native Nations out of business and causing the GENI stock-loan scheme to collapse.³ Native Nations did not return over $200 million in cash collateral it owed to MJK for the stock loans. Irrespective of Native Nations' failure to return the funds to MJK, MJK had an independent obligation to return the funds to the broker/dealer behind it in the chain. Unable to absorb this over $200 million loss, MJK contacted officials at the Federal Reserve Bank and almost immediately ceased operations. A SIPA⁴ liquidation of MJK was commenced in the United States District Court for the District of Minnesota, and the entire liquidation proceeding was removed to the United States Bankruptcy Court for the District of Minnesota.

The MJK Trustee originally brought an adversary proceeding in the United States Bankruptcy Court for the District of Minnesota against various defendants, including El-Batrawi and Deutsche Bank SL, alleging the defendants were jointly and severally liable in committing various violations of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78nn; the Minnesota Securities Act, Minn.Stat. § 80A.40-.50; and Rackateer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. §§ 1961-1968; in addition to allegations of common law fraud, conspiracy to defraud, and violations of the Minnesota Consumer Protection Act, Minn.Stat. §§ 324-338. Thereafter, the MJK Trustee's action was transferred to the United States District Court for the District of Minnesota.

On November 5, 2002, the MJK Trustee served the complaint on El-Batrawi by first-class mail at 3040 Beckman Drive, Los Angeles, California (Beckman address). Proof of service was filed with the Bankruptcy Court on November 18, 2002.⁵ The amended complaint was served on El-Batrawi at the Beckman address by first-class mail on November 22, 2002, and proof of service was filed on December 2, 2002. The mailings sent to the Beckman address were never returned to the MJK Trustee. Copies of the summons and amended complaint were also mailed by first-class mail to El-Batrawi at three additional addresses; each of these attempts were returned to the MJK Trustee indicating El-Batrawi no longer resided at those addresses, and no forwarding contact information was provided.

El-Batrawi did not appear to defend in the action after this service on the Beckman address. On April 30, 2003, the MJK Trustee filed for leave to serve El-Batrawi by publication, and on May 27, 2003, the district court granted the MJK Trustee's motion to serve El-Batrawi by publication in the Los Angeles Times once a week for four consecutive weeks.⁶ Service by publication was completed on July 27, 2003. El-Batrawi did not file or serve any pleading in response to the service by publication. On August 22, 2003, the MJK Trustee filed for entry of default against El-Batrawi, and the Clerk of Court entered default against El-Batrawi that same day.

In 2005, the MJK Trustee reached a settlement with the Deutsche Bank SL for $147.5 million in cash, waivers, and the withdrawal of certain claims valuing approximately $120 million, for a total settlement value of $267.5 million. According to the MJK Trustee, after reaching the Deutsche Bank SL settlement, approximately $67.5 million in uncompensated damages remained.

On April 7, 2006, and again on June 7, 2006, the MJK Trustee filed a motion for default judgment for the remaining $67.5 million in damages yet to be recovered by the MJK Trustee against El-Batrawi and other defendants who did not participate in the Deutsche Bank SL settlement agreement. Less than a week after the filing of the second motion for default judgment, but three and one-half years after service of the complaint and summons at the Beckman address, El-Batrawi made his first appearance in the case, filing a motion to set aside the default that had been entered against him in 2003. Without explanation of how he became aware of the MJK Trustee's action, El-Batrawi denied that he ever obtained actual notice and urged the district court to set aside the default against him, arguing he had meritorious defenses.

On January 26, 2007, the United States Magistrate Judge issued a Report and Recommendation, recommending El-Batrawi's motion to set aside be denied and the MJK Trustee's motion for default judgment be granted. After entertaining objections and responses to the Report and Recommendation, on March 8, 2007, the district court adopted the Report and Recommendation in its entirety. Judgment was entered on April 20, 2007, in the amount of $67.5 million against El-Batrawi and the remaining co-defendants, jointly and severally. El-Batrawi timely appealed.

El-Batrawi argues the district court abused its discretion in denying his motion to set aside default so he could make an appearance and defend the litigation pending in the district court, and that the district court erred in granting the MJK Trustee's motion for default judgment as against him and in entering a money judgment against him, jointly and severally with other defendants, in the amount of $67.5 million, plus post-judgment interest.

II. DISCUSSION

A. Entry of Default

We review the denial of a motion to set aside default for an abuse of discretion. Watkins v. Lundell, 169 F.3d 540, 543-44 (8th Cir.1999). "The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Fed.R.Civ.P. 55(c). When examining whether good cause exists, the district court should weigh "whether the conduct of the defaulting party was blameworthy or culpable, whether the defaulting party has a meritorious defense, and whether the other party would be prejudiced if the default were excused." Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 784 (8th Cir.1998).

1. Blameworthy or Culpable Conduct

In an effort to show he was not blameworthy or culpable, El-Batrawi claims he did not receive "actual" notice of the lawsuit, although counsel for El-Batrawi conceded at oral argument that service was legally effective. The district court, in adopting the Report and Recommendation of the Magistrate Judge in its entirety, concluded the MJK Trustee properly served El-Batrawi. The MJK Trustee mailed copies of the initial summons and complaint, and the amended complaint, to El-Batrawi at the Beckman address, pursuant to Federal Rule of Bankruptcy Procedure 7004. Because those documents were never returned to the MJK Trustee by the United States Postal Service, the law presumes El-Batrawi was...