Enerkon Solar International, Inc. v. Capello

D. Nevada

Enerkon Solar International, Inc. v. Capello

DecidedMay 6, 2024

Docket2:21-cv-01122

StatusUnknown

This text of Enerkon Solar International, Inc. v. Capello (Enerkon Solar International, Inc. v. Capello) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Enerkon Solar International, Inc. v. Capello, (D. Nev. 2024).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 ENERKON SOLAR INTERNATIONAL, INC., Case No. 2:21-CV-1122 JCM (VCF)

8 Plaintiff(s), ORDER

9 v.

10 JOHN V. CAPELLO, et al.,

11 Defendant(s).

12 13 Presently before the court is defendants/counterclaimants Sea Friends, Inc. and Michael 14 Studer (collectively, “counterclaimants”)’s motion to amend the judgment. (ECF No. 108). 15 Plaintiff Enerkon Solar International, Inc. (“Enerkon”) did not file a response to 16 counterclaimants’ motion. 17 I. Background 18 19 This case arises out of securities fraud concerning restrictions upon the sale and trading 20 of stock for Enerkon. After Enerkon failed to comply with two orders from the court to appear 21 for hearings, the magistrate judge recommended that the matter be dismissed. (ECF No. 93 at 3- 22 4). This court adopted the report and recommendation in full, dismissing Enerkon’s complaint 23 for want of prosecution. (ECF No. 95 at 1-2). 24 25 Subsequently, counterclaimants filed a motion to amend the judgment to include a 26 monetary award related to their counterclaims asserted against Enerkon. (See generally ECF No. 27 102). On January 18, 2023, the court awarded counterclaimants damages totaling $1,609,836.05 28 1 and further ordered them to file a proposed amended judgment. (See generally ECF No. 103). 2 The signed judgment provided the following: 3 That judgment is entered in favor of Counterclaimants Sea Friends 4 Incorporated and Michael Studer and against Counter-Defendant Enerkon Solar International, Inc. in the amount of One Million Six Hundred and 5 Nine Thousand Eight Hundred and Thirty-Six Dollars and Five Cents 6 ($1,609,836.05) . . . [p]ost-judgment interest will run at the rate of 0.095% compounded annually, from January 18, 2023, until satisfied. 7 (ECF No. 106 at 3) (emphasis added). 8

9 On February 15, 2024, collection counsel for counterclaimants contacted their securities’ 10 counsel regarding the interest rate referenced in the judgment as well as the new name of the 11 judgment debtor. (ECF No. 108-1 at 1-2). While litigation was pending, Enerkon changed its 12 name to “New Technology Acquisition Holdings, Inc.” (“NTAC”) (ECF No. 108-2 at 12). 13 Counterclaimants move the court to amend its prior judgment to identify Enerkon’s new 14 15 name and the correct interest rate, the latter of which counterclaimants allege is due to a 16 scrivener’s error. (ECF No. 108 at 5-7). The exhibits provided by counterclaimants and 17 Enerkon’s failure to respond compel the court to grant the instant motion. 18 II. Legal Standard 19 Federal Rule of Civil Procedure 60 governs clerical mistakes in a judgment or mistakes 20 21 “arising from oversight or omission” contained in a judgment. Fed. R. Civ. P. 60(a). Courts 22 may invoke Rule 60(a) “to resolve an ambiguity in [an] original order to more clearly reflect 23 contemporaneous intent and ensure that the court’s purpose is fully implemented.” Garamendi 24 v. Henin, 683 F.3d 1069, 1078 (9th Cir. 2012) (internal citation omitted). “A district court has 25 very wide latitude in correcting clerical mistakes in a judgment.” Blanton v. Anzalone, 813 F.2d 26 27 1574, 1577 (9th Cir. 1987) (citing In re Jee, 799 F.2d 532, 535 (9th Cir. 1986)). 28 1 When exercising its discretion to amend a judgment, a court may “invoke Rule 60(a) . . . 2 to make a judgment reflect the actual intentions of the court, plus necessary implications.” 3 Blanton, 813 F.2d at 1577. “[C]lerical errors in the record arising from oversight or omission 4 may be corrected by the court or at any time of its own initiative or on the motion of any party.” 5 6 Day v. McDonough, 547 U.S. 198, 210 (2006) (internal quotation marks and citations omitted). 7 III. Discussion 8 Counterclaimants request the court to amend its prior judgment to identify Enerkon’s new 9 name and the correct interest rate. The court will address each issue in turn. 10 A. Enerkon’s new name 11 12 District courts may amend a judgment to add a new judgment debtor or correct a clerical 13 issue if the amendment does “not go to the merits of the case.” Cigna Prop. & Cas. Ins. Co. v. 14 Polaris Pictures Corp., 159 F.3d 412, 421 (9th Cir. 1998). Amending a judgment to add a 15 judgment debtor may also be appropriate under Federal Rule of Civil Procedure 69(a) depending 16 upon the practice and procedure of the state where enforcement is sought. Id. 17 18 The court entered judgment against Enerkon, who was the entity that initiated the lawsuit, 19 and the judgment reflected the name of the judgment debtor as Enerkon. (ECF No. 106 at 3). 20 However, and as stated, supra, Enerkon changed its name to NTAC in October of 2022, while 21 litigation was pending but before the court awarded damages and attorneys’ fees to 22 counterclaimants. (ECF No. 108-2 at 12). Enerkon failed to notify the court and 23 24 counterclaimants that its name changed. (ECF No. 108-1 at 3). 25 NTAC indicated in its filings to the Securities and Exchange Commission that its office is 26 located in Wyoming. (ECF No. 108-2 at 11-12). Wyoming law is identical to Federal Rule of 27 Civil Procedure 60(a), which governs amendments to judgments. See W.R.C.P. 60(a) (“[t]the 28 1 court may correct a clerical mistake or a mistake arising from oversight or omission whenever 2 one is found in a judgment, order, or other part of the record.”). 3 The court grants counterclaimants’ request to amend its prior judgment to identify 4 Enerkon’s new name as New Technology Acquisition Holdings, Inc. 5 6 B. Correct interest rate 7 Post-judgment interest is calculated “from the date of the entry of judgment.” 28 U.S.C. 8 § 1961(a); Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1023 (9th Cir. 2004). 9 “Postjudgment interest is compounded annually and computed daily up to the date the judgment 10 is paid.” D.E. Shaw Laminar Portfolios, LLC v. Archon Corp., No. 2:07-cv-01146-PMP-LRL, 11 12 2012 WL 5406310, at *2 (D. Nev. Nov. 5, 2012). 13 “The purpose of postjudgment interest is to compensate the successful [party] for being 14 deprived of compensation for the loss of time between the ascertainment of the damage and the 15 payment by the defendant.” United States v. Bell, 602 F.3d 1074, 1083 (9th Cir. 2010). “When 16 a judgment is amended, awarding postjudgment interest from the date of the original judgment is 17 18 proper to the extent the original judgment was ‘permitted to stand.’” D.E. Shaw Laminar 19 Portfolios, LLC, 2012 WL 5406310, at *2 (citing Tinsley v. Sea-Land Corp., 979 F.2d 1382, 20 1382 (9th Cir. 1992)).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 ENERKON SOLAR INTERNATIONAL, INC., Case No. 2:21-CV-1122 JCM (VCF)

8 Plaintiff(s), ORDER

9 v.

10 JOHN V. CAPELLO, et al.,

11 Defendant(s).

12 13 Presently before the court is defendants/counterclaimants Sea Friends, Inc. and Michael 14 Studer (collectively, “counterclaimants”)’s motion to amend the judgment. (ECF No. 108). 15 Plaintiff Enerkon Solar International, Inc. (“Enerkon”) did not file a response to 16 counterclaimants’ motion. 17 I. Background 18 19 This case arises out of securities fraud concerning restrictions upon the sale and trading 20 of stock for Enerkon. After Enerkon failed to comply with two orders from the court to appear 21 for hearings, the magistrate judge recommended that the matter be dismissed. (ECF No. 93 at 3- 22 4). This court adopted the report and recommendation in full, dismissing Enerkon’s complaint 23 for want of prosecution. (ECF No. 95 at 1-2). 24 25 Subsequently, counterclaimants filed a motion to amend the judgment to include a 26 monetary award related to their counterclaims asserted against Enerkon. (See generally ECF No. 27 102). On January 18, 2023, the court awarded counterclaimants damages totaling $1,609,836.05 28 1 and further ordered them to file a proposed amended judgment. (See generally ECF No. 103). 2 The signed judgment provided the following: 3 That judgment is entered in favor of Counterclaimants Sea Friends 4 Incorporated and Michael Studer and against Counter-Defendant Enerkon Solar International, Inc. in the amount of One Million Six Hundred and 5 Nine Thousand Eight Hundred and Thirty-Six Dollars and Five Cents 6 ($1,609,836.05) . . . [p]ost-judgment interest will run at the rate of 0.095% compounded annually, from January 18, 2023, until satisfied. 7 (ECF No. 106 at 3) (emphasis added). 8

9 On February 15, 2024, collection counsel for counterclaimants contacted their securities’ 10 counsel regarding the interest rate referenced in the judgment as well as the new name of the 11 judgment debtor. (ECF No. 108-1 at 1-2). While litigation was pending, Enerkon changed its 12 name to “New Technology Acquisition Holdings, Inc.” (“NTAC”) (ECF No. 108-2 at 12). 13 Counterclaimants move the court to amend its prior judgment to identify Enerkon’s new 14 15 name and the correct interest rate, the latter of which counterclaimants allege is due to a 16 scrivener’s error. (ECF No. 108 at 5-7). The exhibits provided by counterclaimants and 17 Enerkon’s failure to respond compel the court to grant the instant motion. 18 II. Legal Standard 19 Federal Rule of Civil Procedure 60 governs clerical mistakes in a judgment or mistakes 20 21 “arising from oversight or omission” contained in a judgment. Fed. R. Civ. P. 60(a). Courts 22 may invoke Rule 60(a) “to resolve an ambiguity in [an] original order to more clearly reflect 23 contemporaneous intent and ensure that the court’s purpose is fully implemented.” Garamendi 24 v. Henin, 683 F.3d 1069, 1078 (9th Cir. 2012) (internal citation omitted). “A district court has 25 very wide latitude in correcting clerical mistakes in a judgment.” Blanton v. Anzalone, 813 F.2d 26 27 1574, 1577 (9th Cir. 1987) (citing In re Jee, 799 F.2d 532, 535 (9th Cir. 1986)). 28 1 When exercising its discretion to amend a judgment, a court may “invoke Rule 60(a) . . . 2 to make a judgment reflect the actual intentions of the court, plus necessary implications.” 3 Blanton, 813 F.2d at 1577. “[C]lerical errors in the record arising from oversight or omission 4 may be corrected by the court or at any time of its own initiative or on the motion of any party.” 5 6 Day v. McDonough, 547 U.S. 198, 210 (2006) (internal quotation marks and citations omitted). 7 III. Discussion 8 Counterclaimants request the court to amend its prior judgment to identify Enerkon’s new 9 name and the correct interest rate. The court will address each issue in turn. 10 A. Enerkon’s new name 11 12 District courts may amend a judgment to add a new judgment debtor or correct a clerical 13 issue if the amendment does “not go to the merits of the case.” Cigna Prop. & Cas. Ins. Co. v. 14 Polaris Pictures Corp., 159 F.3d 412, 421 (9th Cir. 1998). Amending a judgment to add a 15 judgment debtor may also be appropriate under Federal Rule of Civil Procedure 69(a) depending 16 upon the practice and procedure of the state where enforcement is sought. Id. 17 18 The court entered judgment against Enerkon, who was the entity that initiated the lawsuit, 19 and the judgment reflected the name of the judgment debtor as Enerkon. (ECF No. 106 at 3). 20 However, and as stated, supra, Enerkon changed its name to NTAC in October of 2022, while 21 litigation was pending but before the court awarded damages and attorneys’ fees to 22 counterclaimants. (ECF No. 108-2 at 12). Enerkon failed to notify the court and 23 24 counterclaimants that its name changed. (ECF No. 108-1 at 3). 25 NTAC indicated in its filings to the Securities and Exchange Commission that its office is 26 located in Wyoming. (ECF No. 108-2 at 11-12). Wyoming law is identical to Federal Rule of 27 Civil Procedure 60(a), which governs amendments to judgments. See W.R.C.P. 60(a) (“[t]the 28 1 court may correct a clerical mistake or a mistake arising from oversight or omission whenever 2 one is found in a judgment, order, or other part of the record.”). 3 The court grants counterclaimants’ request to amend its prior judgment to identify 4 Enerkon’s new name as New Technology Acquisition Holdings, Inc. 5 6 B. Correct interest rate 7 Post-judgment interest is calculated “from the date of the entry of judgment.” 28 U.S.C. 8 § 1961(a); Fid. Fed. Bank, FSB v. Durga Ma Corp., 387 F.3d 1021, 1023 (9th Cir. 2004). 9 “Postjudgment interest is compounded annually and computed daily up to the date the judgment 10 is paid.” D.E. Shaw Laminar Portfolios, LLC v. Archon Corp., No. 2:07-cv-01146-PMP-LRL, 11 12 2012 WL 5406310, at *2 (D. Nev. Nov. 5, 2012). 13 “The purpose of postjudgment interest is to compensate the successful [party] for being 14 deprived of compensation for the loss of time between the ascertainment of the damage and the 15 payment by the defendant.” United States v. Bell, 602 F.3d 1074, 1083 (9th Cir. 2010). “When 16 a judgment is amended, awarding postjudgment interest from the date of the original judgment is 17 18 proper to the extent the original judgment was ‘permitted to stand.’” D.E. Shaw Laminar 19 Portfolios, LLC, 2012 WL 5406310, at *2 (citing Tinsley v. Sea-Land Corp., 979 F.2d 1382, 20 1382 (9th Cir. 1992)). 21 Defense counsel represents that the previously prepared proposed judgment contained a 22 scrivener’s error and improperly identified the post-judgment interest rate as 0.095%. (ECF No. 23 24 108 at 6). Counterclaimants request for the scrivener’s error to be corrected in the judgment and 25 for the court to amend the judgment to reflect the appropriate, statutorily-authorized post- 26 judgment interest rate of approximately 4.75% running from the date of the court’s order issued 27 28 on January 18, 2023, until the judgment is satisfied. (Jd. at 10). The court grants 2 counterclaimants’ request. ° IV. Conclusion 4 5 Accordingly, 6 IT IS = HEREBY ORDERED, ADJUDGED, and DECREED □□ that 7 | defendants/counterclaimants Sea Friends, Inc. and Michael Studer’s motion to amend the 8 judgment (ECF No. 108) be, and the same hereby is, GRANTED. Counterclaimants shall submit a proposed amended judgment within thirty (30) days.

es C. Mahan District Judge _5-

Cigna Property and Casualty Insurance Company Cigna Group of Companies David F. Allen Alliance Marine Risk Managers, Inc., Plaintiffs-Counter v. Polaris Pictures Corporation U.S. Inbanco, Ltd., Defendants-Counter- Claimants-Appellants. Cigna Property and Casualty Insurance Company Cigna Group of Companies David F. Allen Alliance Marine Risk Managers, Inc. v. Polaris Pictures Corporation U.S. Inbanco, Ltd. Rex K. De George

159 F.3d 412 (Ninth Circuit, 1998)

Fidelity Federal Bank, Fsb, a Federally Chartered Savings Bank v. Durga Ma Corporation, a New Jersey Corporation

387 F.3d 1021 (Ninth Circuit, 2004)

John Garamendi v. Jean-Francois Hennin

683 F.3d 1069 (Ninth Circuit, 2012)

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