United States District Court, D. New Hampshire
MED TRUST Handelsges.m.b.H.
Intrinsyk Medical Devices, LLC
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge.
April 2018, an arbitral tribunal in Vienna, Austria awarded
Plaintiff over $110, 000, plus interest, costs and
attorneys' fees, after finding that the defendant
breached a contract between the parties. Plaintiff
subsequently filed a petition (Doc. No. 1-5) to recognize and
enforce the arbitral award in this court. See 9
U.S.C. § 201 (implementing Convention on the Recognition
and Enforcement of Foreign Arbitral Awards of June 10, 1958).
The defendant has defaulted. Doc. No. 9. Plaintiff's
unopposed motions for default judgment (Doc. No. 11) and
attorneys' fees (Doc. Nos. 12 and 13) are before the
undersigned magistrate judge for a report and recommendation.
For the reasons that follow, the district judge should grant
plaintiff's motion for default judgment.
Standard of Review
default is entered and when, as here, the amount at issue is
not a sum certain, “the party must apply to the court
for a default judgment.” Fed.R.Civ.P. 55(b)(2);
see also KPS & Assocs., Inc. v. Designs by
FMC, Inc., 318 F.3d 1, 18-19 (1st Cir. 2003).
“Although a defaulting party admits the factual basis
of the claims asserted against it, the defaulting party does
not admit the legal sufficiency of those claims.” 10
James Wm. Moore, Moore's Federal Practice §
55.32[b] (3d ed. 2013). Before entering default judgment,
the court must determine whether “[t]he claimant [has]
state[d] a legally valid claim for relief.”
Id.; see also Ramos-Falcon v. Autoridad de
Energia Electrica, 301 F.3d 1, 2 (1st Cir. 2002).
virtue of their default, defendants have admitted the
following facts, as set forth in plaintiff's Petition. In
September 2015, the parties entered into an International
Distribution Agreement, (the “Agreement”) for
defendant Intrinsyk's distribution of plaintiff Med
Trust's diabetes management products within the United
States and Canada. The Agreement included an arbitration
clause pertaining to “all disputes arising out
of” the Agreement. Any arbitration was to use the Rules
of Arbitration and Conciliation of the International Arbitral
Centre of the Austrian federal Economic Chamber in Vienna
(the “Vienna Rules”).
December 2016, plaintiff's Austrian legal counsel
requested, in writing, that the defendants pay outstanding
bills $57, 660, stemming from an order in April 2016. The
payment request included an annual interest charge of 8.58
percent, covering mid-September through mid-December 2016.
The letter further informed defendant that Austrian legal
counsel had been instructed by plaintiff to file a request
for arbitration according to Agreement in the event defendant
failed to comply.
January 24, 2017, having received no response to the previous
month's latter, plaintiff's counsel filed a request
for arbitration in the Vienna International Arbitral Center.
The plaintiff sought an award of $110, 160. Counsel for the
defendant timely responded to plaintiff's claim.
arbitration proceedings took place in January 2018. Both
parties were represented by counsel. Each party had the
opportunity to question every witness. The arbitrator issued
a final award in plaintiff's favor in April 2018. The
arbitrator found that the parties' actions formed a
contract and that the defendant failed to pay for goods
delivered by the plaintiff and accepted by defendant; and,
that Defendant failed to perform its obligations under the
Agreement. The arbitration award obligated the defendant to
pay plaintiff $110, 160. The award consisted of two parts: 1)
$57, 660 for the defendant's failure to pay for goods
delivered as of November 12, 2016; and 2) $52, 500 for the
defendant's failure to satisfy certain contractual
obligations after January 13, 2017. Plaintiff was also
awarded $20, 426.77 in costs and fees associated with the
arbitration proceeding. Despite two written requests from
plaintiff's counsel, the defendant has not paid any part
of the arbitration award.
filed the instant action to enforce the arbitration award in
March 2019. (Doc. No. 1). Although defendant was served,
see Doc. Nos. 6-8, defendant did not answer or
otherwise appear. The Clerk of Court entered default against
the defendant on April 25, 2019. See Fed. R. Civ. P.
55(a); LR 55.1
arbitration provision in an international commercial contract
such as the Agreement signed by the parties in this matter is
governed by Chapter Two of the Federal Arbitration Act
(“FAA”), 9 U.S.C. §§ 201-208, which
implemented the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (“the
Convention”), ratified by the United States, September
30, 1970, 21 U.S.T. 2517, T.I.A.S. No. 6997 (reprinted
following 9 U.S.C. § 201). DiMercurio v. Sphere
Drake Ins., PLC, 202 F.3d 71, 74 (1st Cir. 2000). The
Convention is an international agreement designed “to
encourage the recognition and enforcement of commercial
arbitration agreements in international contracts and to
unify the standards by which agreements to arbitrate are
observed and arbitral awards are enforced.” Scherk
v. Alberto-Culver Co., 417 U.S. 506, 520 n. 15 (1974).
“A district court's duty to enforce arbitration
clauses that so qualify cannot seriously be
questioned.” InterGen v. Grina, 344 F.3d 134,
141 (1st Cir. 2003) (citing 9 U.S.C. § 201 (directing
that the Convention “shall be enforced in United States
proceeding to confirm an arbitration award “is intended
to be summary.” Popular Sec., Inc. v. Colon,59 F.Supp.3d 316, 318 (D.P.R. 2014) (citing Taylor v.
Nelson,788 F.2d 220, 225 (4th Cir. 1986)).
“[R]eview of the arbitration award itself is
‘extremely narrow and exceedingly
deferential.'” Bangor Gas Co., LLC v. H.Q.
Energy Servs. (U.S.), Inc.,695 F.3d 181, 186 (1st Cir.
2012) (quoting Bull HN Info. Sys., Inc. v. Hutson,229 F.3d 321, 330 (1st Cir. 2000)). “The confirmation
of an arbitration award finalizes the award and makes the
award a judgment of the court.” Bacardi Int'l
Ltd. v. Suarez & Co., Inc.,719 F.3d 1, 13 (1st Cir.
2013). “The court shall confirm the award unless it
finds one of the grounds for refusal or deferral of
recognition or enforcement of the award specified in the ...