U.S. Sec. & Exch. Comm'n v. Benger
| Decision Date | 27 May 2014 |
| Docket Number | No. 09 C 676,09 C 676 |
| Parties | UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. STEFAN H. BENGER, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Stefan von Hase and his company, CTA Worldwide, S.A., two defendants among several in this case, move for an order vacating the default entered against them October 23, 2013. [Dkt. #457].1 The SEC has objected - and quite vigorously. [Dkt. #471]. Mr. von Hase - resident of the Bahamas - claims that from April through October 2013, he was essentially incapacitated by alcoholism and could not attend to his obligations and those of CTA Worldwide to participate in this case. Aside from that, he paints a rather glowing picture of his participation in this case. To hear him tell it, he has dutifully responded to complaints, sat for depositions, and traveled to Chicago several times to meet with his attorney. But the reality is quite different.
II.
The SEC filed this suit on February 3, 2009, naming eight defendants and two relief defendants, Mr. von Hase and CTA Worldwide ("the default defendants"). (Dkt. #1). The defaultdefendants moved to dismiss the complaint on the ground () that the court lacked personal jurisdiction over them. (Dkt. #70). Judge Lefkow denied the motion, finding that "both [von Hase] and CTA continually conduct business in the United States and in doing so, have sought to benefit from its laws." SEC v. Benger, 2009 WL 1851186, at *8 (N.D. Ill. 2009).
The default defendants' answer to the Complaint was due on July 14, 2009, but they missed that deadline - by quite a bit. It was not until August 20th that they even sought an extension of time. The excuse was that Mr. von Hase was based in the Bahamas, and his counsel had a trial in Virginia during August. (Dkt. # 153). While this did not account for the default defendants' inactivity during the entire month of July, Judge Lefkow nevertheless granted the motion and gave them until September 4, 2009, to file their answer. (Dkt. # 159). But that deadline came and went any filing and without a request for an additional extension. The answer was not filed until October 15, 2009, well over a month after it was due. (Dkt. # 180). No motion for leave to the answer, instanter, was made.
On April 1, 2010, the SEC filed an amended complaint which, among other things, converted von Hase and CTA from relief defendants to full defendants. (Dkt. # 238). On April 8, 2010, Judge Lefkow ordered all defendants to respond to the amended complaint by May 6th. (Dkt. # 239). With the exception of the default defendants, all the defendants complied. Again, the default defendants did not seek extra time to file their answer. The SEC subsequently informed the default defendants that it would move for a default judgment if they did not communicate their intent to file an answer by May 19th. (Dkt. # 253, Ex. 1). The default defendants ignored the SEC's communication, and the SEC filed its motion as promised. (Dkt. # 253).
And so, Judge Lefkow entered the first default judgment against the default defendants on June 22, 2010. (Dkt. # 261). The judge set a remedies prove-up hearing for August 17, 2010. (Dkt. # 258).2 Judge Lefkow postponed that hearing until September 2, 2010, at which time the default defendants asked for leave to file a motion to vacate the default judgment. (Dkt. # 264; 266). They filed their motion on September 9th (Dkt. #267), and the SEC agreed not to oppose it if the default defendants provided complete discovery responses, filed an answer to the complaint, and produced Mr. von Hase for a deposition. On November 16, 2010, the default defendants finally sought and were subsequently granted leave to file their answer to the amended complaint instanter. (Dkt. # 282; 284). The parties then consented to jurisdiction here under 28 U.S.C. § 636 (c).
In the wake of Janus Capital Group, Inc. v. First Derivative Traders' holding that "[f]or purposes of Rule 10b-5, the maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it," 131 S.Ct. 2296, 2302 (2011), the SEC sought and was granted leave to file its current amended complaint on December 20, 2011. (Dkt. #332-334). Defendants filed various motions to dismiss and for summary judgment and, following extensive briefing and oral argument, the court issued a series of rulings in February and March 2013, granting the motions in part and denying them in part. (Dkt. # 405; 411-413; 415; 418-419). See S.E.C. v. Benger, 2013 WL 593952 (N.D.Ill. 2013); S.E.C. v. Benger, 931 F.Supp.2d 908 (N.D.Ill. 2013); S.E.C. v. Benger, 931 F.Supp.2d 904 (N.D.Ill. 2013); S.E.C. v. Benger, 931 F.Supp.2d 901 (N.D.Ill. 2013); S.E.C. v. Benger, 934 F.Supp.2d 1008 (N.D.Ill. 2013).
After the SEC elected to stand on the surviving claims in its complaint, certain defendants moved for an extension of time to answer the complaint. (Dkt. #425). The motion was granted, and the defendants were given until June 13, 2013 to answer. (Dkt. # 425; 427). Yet again, the default defendants failed to file their answer by the deadline or move for a further extension of time.
On August 26, 2013, Mr. von Hase's counsel filed a motion to withdraw as the default defendants' attorney, explaining that, since early in 2013, his clients had communicated with him less frequently. He had not heard from Mr. von Hase since April 13, 2013, despite sending him thirteen emails and leaving twelve voicemails. (Dkt. #435). He said he made several other efforts to contact Mr. von Hase, from asking his friends about him, to contacting the Bahamian police. Finally, counsel was directed to the honorary German consul who said von Hase had been drinking heavily and had withdrawn from social contact. (Dkt. # 435). The default defendants' counsel attempted to FedEx a letter to Mr. von Hase, but the delivery service was unable to gain entrance to Mr. von Hase's residence. Conceding that the case must go forward, the default defendants' lawyer asked for leave to withdraw as counsel. (Dkt. # 435). The motion was granted, and the default defendants were ordered to answer the complaint by October 7, 2013. (Dkt. # 442). They did not do so.
On October 23, 2013, the court granted the SEC's oral motion for entry of default against the default defendants. (Dkt. # 447). Coincidentally, Mr. von Hase's counsel had apparently re-established contact with Mr. von Hase and was allowed to re-enter the case. (Dkt. # 447). He explained that Mr. von Hase had endured a "lengthy hospitalization" for alcoholism. (Dkt. # 471-1,10/23/2013 Hrg. Tr. at 3:21-25). That turned out to be somewhat of an overstatement as Mr. von Hase's stay in a rehabilitation facility was 13 days. Given the history of what had occurred with thedefault defendants, and since "[n]othing is simpler [for a litigant] than to make an unsubstantiated allegation," Parko v. Shell Oil, 739 F.3d 1083, 1086 (7th Cir. 2014), I told Mr. von Hase's counsel that I would need something more than Mr. von Hase's word given through his lawyer, who of course had no first hand information at all. Accordingly, I advised counsel that any motion to vacate the default must be supported by evidence in the form of hospital and doctors' records, documenting his stay in the hospital and visits with his doctors. ). Counsel agreed. (Id.).
After this hearing, the default defendants took absolutely no action to cure their default or answer the complaint for another three months - until January 28, 2014 - before filing their Fed.R.Civ.P. 55(c) motion to vacate. (Dkt. # 457). Again coincidentally, that was just days after the SEC had moved for an entry of final default judgment against them. (Dkt. # 451). The essence of Mr. von Hase's argument is that the SEC's response to the motion to vacate the defaults "attempts to divert the Court's attention from the reality of the posture of this unique case." (Reply Br. at 1).3 In his view, he and his company, CTA Worldwide, have always been vigilant and faithful to their obligations in this case, and any lapses were attributable to Mr. von Hase's seven-month period of total incapacitation due to alcoholism. The SEC vehemently disagrees.
III.
A.
A party moving to vacate a default order must show: (1) good cause for the default, (2) quickaction to correct it, and (3) a meritorious defense to plaintiff's complaint. Wehrs v. Wells, 688 F.3d 886, 890 (7th Cir. 2012); Cracco v. Vitran Exp., Inc., 559 F.3d 625, 630-31 (7th Cir. 2009). Compare Sims v. EGA Products, Inc,. 475 F.3d 865, 868 (7th Cir.2007)("Rule 55(c) requires 'good cause' for the judicial action, not 'good cause' for the defendant's error; as used in this Rule, the phrase is not a synonym for 'excusable neglect.'" ).
Defaults are available when a party wilfully disregards pending litigation. In Calumet Lumber, Inc. v. Mid-America Indus., Inc., 103 F.3d 612 (7th Cir.1997), the court sustained entry of default judgment where counsel knowingly skipped a hearing and failed to answer a cross-claim altogether. See also Pretzel & Stouffer, 28 F.3d at 44 (). While defaults should not be entered precipitately, Sims v. EGA Products, Inc.(7th Cir.2007), the Seventh Circuit has said that it "no longer follows the earlier doctrine disfavoring defaults," O'Brien v. R.J. O'Brien & Associates, Inc. 998 F.2d 1394, 1401 (7th Cir.1993) or default judgments. Comerica Bank v. Esposito, 215 Fed.Appx. 506, 508 (7th Cir. 2007).
Even if a party can justify his inattention to his obligations, he must show that he moved promptly to vacate the default. Waiting fifty-five days to file a Rule 60(b) motion has been held too long, as have delays...
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