Swiss Inst. Bioinformatics v. Global Initiative On Sharing All Influenza Data

• Decision Date: 23 June 2014
• Docket Number: Civil Action No. 13–1274 RBW
• Parties: Swiss Institute of Bioinformatics, Petitioner, v. Global Initiative on Sharing All Influenza Data, Respondent.
• Court: U.S. District Court — District of Columbia

49 F.Supp.3d 92

Swiss Institute of Bioinformatics, Petitioner
v.
Global Initiative on Sharing All Influenza Data, Respondent.

Civil Action No. 13–1274 RBW

United States District Court, District of Columbia.

Signed June 23, 2014

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Charles Henry Camp, Sr., Law Offices of Charles H. Camp, P.C., Washington, DC, for Petitioner.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

This case arises out of the petitioner's, the Swiss Institute of Bioinformatics, petition to confirm an arbitration award issued by the Geneva Chamber of Commerce against the respondent, the Global Initiative on Sharing All Influenza Data. See generally Petition of Swiss Institute of Bioinformatics To Confirm a Foreign Arbitral Award (“Petition”). Currently before the Court is the petitioner's Motion for Default Judgment and To Confirm a Foreign Arbitral Award (“Pet'r's Mot.”); see also Memorandum in Support of Motion for Default Judgment and To Confirm a Foreign Arbitral Award (“Pet'r's Mem.”). For the reasons set forth below, the Court finds that the petitioner's motion must be granted.¹

I. BACKGROUND

The petitioner “is an academic, non-profit foundation formed in 1998 under the laws of Switzerland,” where it also has its principal place of business. Petition ¶ 1. The respondent “is a non-profit corporation formed in 2006 under the laws of the District of Columbia,” which is also its principal place of business. Id. ¶ 2.

The petitioner and the respondent “entered into an agreement, the EpiFlu Database Agreement (‘Agreement’), on February 29, 2008, under which [the petitioner] was to set-up and maintain the EpiFlu Database and [the respondent] was to promote the database.” Id. ¶ 6. The Agreement contained an arbitration provision, which stated:

This Agreement shall be interpreted, construed, and governed by the laws of Switzerland, without regard to its conflicts of laws principles. The parties agree that in any dispute arising out of this Agreement, exclusive jurisdiction and venue shall be in Geneva under the procedure of the Geneva Chambers of Commerce. The proceedings will be conducted in English.

Id. ¶ 7 (citing August 20, 2013 Declaration of Charles H. Camp (“2013 Camp Decl.”), Exhibit (“Ex.”) 1 (Agreement) ¶ 19). The Agreement further required the respondent to pay the petitioner “CHF 55,000 (Swiss Francs) upon signing the Agreement

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and CHF 80,000 as a ‘down payment against overhead costs described in Exhibit 2.’ ” Id. ¶ 8 (quoting 2013 Camp Decl., Ex. 2 (Final Award) ¶ 104). The respondent also “contracted to pay the pro rata costs of work performed by [the petitioner's] employees on the Database,” including “overhead, Service costs, Software costs, and Training costs.” Id. ¶ 9 (citing 2013 Camp Decl., Ex. 2 (Final Award) ¶ 283). The petitioner “developed the Database in accordance with the Agreement,” id. ¶ 11 (citing 2013 Camp Decl., Ex. 2 (Final Award) ¶ 108), and the Arbitrator found that “the Database ‘seemed to be fulfilling the purpose for which it was designed,’ ” id. ¶ 12 (quoting 2013 Camp Decl., Ex. 2 (Final Award) ¶ 109). Aside from a single CHF 500 payment, the respondent has made no payments to the petitioner despite requests to do so. Id. ¶¶ 10, 13–14, 16–17. “[T]he petitioner terminated the Agreement on June 11, 2009, ... removed access to the EpiFlu database from the [respondent's] portal and redirected users to its own web portal,” and additionally “emailed [users] to inform them [of] the access change.” Id. ¶¶ 17–19.

“In response, on August 20, 2009, [the respondent] filed a Notice of Arbitration with the Geneva Chamber of Commerce, Industry and Services [ ].” Id. ¶ 20. The arbitrator found in favor of the petitioner and “ordered [the] [r]espondent to pay [the] [p]etitioner ... the following amounts: (a) CHF 576,906.22 plus 5% interest per annum from April 1, 2010; plus (b) CHF 191,914.75 and 30,390 plus 5% interest per annum from July 8, 2012; and (c) 75% of the remaining costs of the arbitration and 75% of the [p]etitioner's legal costs.” Id. ¶ 31.

The petitioner subsequently filed this action seeking to confirm the Final Award pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 38 (the “New York Convention”) and Chapter 2 of the Federal Arbitration Act, 9 U.S.C. §§ 201 –08 (2012). Id. ¶ 3. The petitioner contends that the respondent owes it $999,450.32 in accordance with the Final Award.² Although the petitioner filed an affidavit of service indicating that the respondent has been served with the summons and the petition, see ECF No. 4 (Affidavit of Service) at 1, the respondent has neither entered an appearance nor answered the petition. The Clerk of this Court entered a default against the respondent on September 17, 2013. ECF No. 6 (Default) at 1. The petitioner thereafter filed its motion for entry of a default judgment. Pet'r's Mot. at 1. In its motion, the petitioner represents that it has incurred an additional $35,712.93 in attorney's fees and expenses in prosecuting this action since the issuance of the Final Award, of which it seeks a total of $26,784.69, which is equal to seventy-five percent of the attorney's fees and costs incurred. Id. at 2. The petitioner also requests post judgment interest. Id. at 2. The respondent has not filed an opposition to the petitioner's motion. Id.

II. STANDARD OF REVIEW

When a defendant fails to defend against a case or otherwise engages in dilatory tactics, the plaintiff may invoke the Court's power to enter a default judgment by first seeking the entry of a default. See

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Fed.R.Civ.P. 55(a) ; Peak v. District of Columbia, 236 F.R.D. 13, 15 (D.D.C.2006) (citing Keegel v. Key West & Caribbean Trading Co., 627 F.2d 372, 375 n. 5 (D.C.Cir.1980) ); see also Jackson v. Beech, 636 F.2d 831, 836 (D.C.Cir.1980) (“The default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party.” (citation and quotation marks omitted)). The Federal Rules of Civil Procedure provide for the entry of a default when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed.R.Civ.P. 55(a). Rule 55 sets forth a two-step process for a party seeking a default judgment: entry of a default, followed by entry of a default judgment. See id. ;Jackson , 636 F.2d at 835 ; see also 10A Charles Alan Wright et al., Federal Practice & Procedure § 2682 (3d ed.2008) (stating that, before “obtaining a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be an entry of default as provided by Rule 55(a) ”). Thus, when a defendant has failed to respond to pleadings or otherwise defend against an action, the plaintiff may request that the Clerk of the Court enter a default against that defendant. Fed.R.Civ.P. 55(a). Once the Clerk enters the default pursuant to Rule 55(a), Rule 55(b) authorizes either the Clerk or the Court to enter a default judgment against the defendant. Id. (b).

Despite a plaintiff's ability to acquire a judgment by default, there are “strong policies favoring the resolution of genuine disputes on their merits.” Jackson, 636 F.2d at 835 ; see Peak, 236 F.R.D. at 15 (acknowledging the inherent unfairness of awarding judgment against a party for mere filing delays). However, while courts do not favor default judgment and will only resolve cases in this manner “when the adversary process has been halted because of an essentially unresponsive party[,] the diligent party must be protected lest [it] be faced with interminable delay and continued uncertainty as to [its] rights.” Teamsters Local 639–Emp'rs Health Trust v. Boiler & Furnace Cleaners, Inc., 571 F.Supp.2d 101, 107 (D.D.C.2008) (first...