DISH Wireless LLC v. VP Wireless, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01816-CNS-CYC
DISH WIRELESS L.L.C., a Colorado limited liability company,
Plaintiff,
v.
VP WIRELESS, INC. d/b/a VIP Wireless Maywood, an Illinois corporation,
Defendant.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
Plaintiff Dish Wireless L.L.C. seeks default judgment against defendant VP Wireless,
Inc. pursuant to Fed. R. Civ. P. 55(b). After reviewing the motion, the attached exhibits, and the
applicable rules and case law, the Court recommends that the motion, ECF No. 14, be granted
and that default judgment enter against the defendant.
BACKGROUND
On June 28, 2024, the plaintiff filed an Application to Confirm Arbitration Award (the
“Application”), seeking to confirm a November 15, 2023 Final Arbitration Award entered in its
favor and against the defendant. See generally ECF No. 1; ECF No. 1-4 (Final Arbitration
Award). The defendant was served with a summons and has not answered or otherwise defended
this case. ECF No. 5 at 2. On September 16, 2024, the Court held a Status Conference at which
then-Chief Magistrate Judge Hegarty directed the Clerk of the Court to enter default against the
defendant. ECF No. 12. That same day, the Clerk of Court entered default pursuant to Federal
Rule of Civil Procedure 55(a). ECF No. 13. This motion followed.
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LEGAL STANDARD
A party may not sit out the litigation without consequence. See Cessna Fin. Corp. v.
Bielenberg Masonry Contracting, Inc., 715 F.2d 1442, 1444-45 (10th Cir. 1983) (“[A] workable
system of justice requires that litigants not be free to appear at their pleasure. We therefore must
hold parties and their attorneys to a reasonably high standard of diligence in observing the
courts’ rules of procedure. The threat of judgment by default serves as an incentive to meet this
standard.”). However, “a party is not entitled to entry of default judgment as a matter of right,”
Greenwich Ins. Co. v. Daniel L. Firm, No. 07-cv-02445-LTB-MJW, 2008 WL 793606, at *2 (D.
Colo. Mar. 22, 2008) (quoting Cablevision of S. Conn. Ltd. P’ship v. Smith, 141 F. Supp. 2d 277,
281 (D. Conn. 2001)), instead, “it remains for the court to consider whether the unchallenged
facts constitute a legitimate basis for the entry of a judgment,” id. at *1. “In determining whether
a claim for relief has been established, the well-pleaded facts of the complaint are deemed true.”
McCabe v. Campos, No. 05-cv-00846-RPM-BNB, 2008 WL 576245, at *2 (D. Colo. Feb. 28,
2008) (citing Dundee Cement Co. v. Howard Pipe & Concrete Prods., Inc., 722 F.2d 1319, 1323
(7th Cir. 1983)). Those facts must provide sufficient information for the Court to conclude that
the plaintiff is entitled to relief. Tripodi v. Welch, 810 F.3d 761, 765 (10th Cir. 2016). Ultimately,
the decision whether to enter judgment by default is committed to the sound discretion of the
district court. Olcott v. Del. Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003). Further, in this
case, because the amount of damages sought is a liquidated amount or capable of mathematical
calculation, no hearing is necessary. See Venable v. Haislip, 721 F.2d 297, 300 (10th Cir. 1983)
(“[A] court may not enter a default judgment without a hearing unless the amount claimed is a
liquidated sum or one capable of mathematical calculation.”).
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The Court first considers its jurisdiction. Dish Network, LLC v. Albertis, Inc., No. 19-cv-
02179-DDD-NRN, 2019 WL 6726229, at *1 (D. Colo. Dec. 11, 2019) (citing Williams v. Life
Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986); Marcus Food Co. v. DiPanfilo, 671 F.3d
1159, 1166 (10th Cir. 2011)). Then the Court will consider whether the undisputed facts provide
a basis for relief. Id.
ANALYSIS
Subject matter jurisdiction exists pursuant to 28 U.S.C. § 1332(a)(1). The plaintiff is a
Colorado limited liability company whose sole member is DISH Wireless Holding, L.L.C., a
Colorado limited liability company with a principal place of business located in Englewood,
Colorado. ECF No. 1 ¶ 1. The defendant is an Illinois corporation with a principal place of
business in Maywood, Illinois. Id. ¶ 2. The amount in controversy, $118,831.50, exceeds
$75,000. Id. ¶ 11; ECF No. 1-4 at 8. Venue is proper under 9 U.S.C. § 9, because the governing
arbitration agreement does not specify a federal court in which an action to enforce the
underlying arbitration award should be filed, and this is the United States court in and for the
judicial district in which the underlying arbitration was filed and the final award was made. ECF
No. 1 ¶¶ 6-7; ECF No. 1-2 at 6-7.
The Court also has personal jurisdiction over the defendant, which entered into a contract
with a Colorado company with an arbitration provision allowing arbitration in Colorado, and so
should have reasonably anticipated being haled into court in this state. Albertis, Inc., 2019 WL
6726229, at *2 (citing AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1057 (10th
Cir. 2008). The Court is also empowered to confirm an arbitration award entered in this state. 9
U.S.C. § 9.
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Satisfied that it has jurisdiction, the Court next considers whether the plaintiff is entitled
to the relief requested. The Court’s review of the arbitration award is governed by the Federal
Arbitration Act (“FAA”).
Section 9 of the [FAA] can be broken into the following elements: (1) the parties
must have agreed to binding arbitration; (2) the petition to confirm the award
must be brought within one year of the award; (3) notice of the petition must be
served on the adverse party; and (4) the petition must be brought in an appropriate
court. See 9 U.S.C. § 9. Provided those elements are met and there are no grounds
for vacatur, modification, or correction as prescribed in §§ 10 & 11 of the Act, the
Court “must” enter judgment confirming the award. Id.
Dish Wireless L.L.C. v. Cynthia I, Inc., No. 23-cv-02547-GPG-NRN, 2024 WL 1931791, at *1
(D. Colo. Apr. 5, 2024), report and recommendation adopted, 2024 WL 2863766 (Apr. 23,
2024); Dish Network, L.L.C. v. Open Orbit Corp., No. 16-cv-02083-CBS, 2017 WL 11488618,
at *5 (D. Colo. May 25, 2017), report and recommendation adopted, No. 16-cv-02083-LTB-
CBS, 2017 WL 11488617 (D. Colo. June 28, 2017).
Here, each of these elements is met. The defendant entered into the Retailer Agreement
on May 11, 2017 with Sprint Solutions, Inc. (“Sprint”), ECF No. 1-2, and the plaintiff acquired
the contractual rights and obligations from Sprint on July 1, 2020. ECF No. 1 ¶ 4 n.2. The
Retailer Agreement provides for binding arbitration. ECF No. 1-2 at 6-8. As to the second
element, the plaintiff filed the Application on June 28, 2024, within one year of the Final
Arbitration Award. ECF No. 1; ECF No. 1-4 at 8. Third, the defendant was properly served. See
ECF No. 12 at 1; ECF No. 5; ECF No. 14-3. Finally, as discussed above, this matter was
properly brought before this Court. See 9 U.S.C. § 9.
Thus, all four elements of Section 9 of the FAA are met, and unless the record reflects a
basis for vacating or modifying the Final Award under Sections 10 or 11 of the FAA, the
plaintiff is entitled to default judgment. See 9 U.S.C. § 9 (if conditions are met, “the court must
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grant such an order unless the award is vacated, modified, or corrected as prescribed in sections
10 and 11 of this title”). The Court can vacate an arbitration award only where
the award was procured by corruption, fraud, or undue means; . . . there was
evident partiality or corruption in the arbitrators, or either of them; . . . the
arbitrators were guilty of misconduct in refusing to postpone the hearing, upon
sufficient cause shown, or in refusing to hear evidence pertinent and material to
the controversy; or of any other misbehavior by which the rights of any party have
been prejudiced; or . . . where the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and definite award upon the
subject matter submitted was not made.
Id. §§ 10(a)(1)-(4). The Court can modify an arbitration award only where
there was an evident material miscalculation of figures or an evident material
mistake in the description of any person, thing, or property referred to in the
award; . . . the arbitrators have awarded upon a matter not submitted to them,
unless it is a matter not affecting the merits of the decision upon the matter
submitted; [or] . . . the award is imperfect in matter of form not affecting the
merits of the controversy.
Id. §§ 11(a)-(c).
The Court has reviewed the case file and finds nothing that suggests any basis to vacate
or modify the Final Arbitration Award. The only fact that initially required further consideration
is the fact that the defendant was dissolved on September 8, 2023. ECF No. 14-5 at 2. As
explained in the Final Arbitration Award, the arbitration was initiated on January 4, 2023, ECF
No. 1-4 at 2, and the arbitrator was appointed on August 31, 2023, ECF No. 14-6 ¶ 5. To the
extent the defendant sought dissolution to avoid any judgment, that does not save the defendant.
Under Illinois law, dissolution does not “[p]revent suit by or against the corporation in its
corporate name.” 805 Ill. Comp. Stat. Ann. 5/12.30(c)(4). Accordingly, the fact that the
defendant was dissolved on September 9, 2023 does not stop this Court from granting the
plaintiff’s motion. See, e.g. Armstrong Transp. Grp., Inc. v. TR Toppers, Inc., No. 12-cv-02821-
MSK-MEH, 2014 WL 12676222, at *1, 7 (D. Colo. Jan. 6, 2014), recommendation adopted at
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ECF No. 96 (unpublished text only entry); Top Rank, Inc. v. Fey, No. 08-cv-00480-RPM, 2009
WL 1384171, at *2 (D. Colo. May 15, 2009).
CONCLUSION
For the foregoing reasons, the Court RECOMMENDS:
• 	That the Court grant Plaintiff DISH Wireless L.L.C.’s Motion for Default
Judgment Against Defendant VP Wireless, Inc. d/b/a VIP Wireless Maywood,
ECF No. 14, and enter default judgment against the defendant;
• 	That the Final Arbitration Award issued in favor of the plaintiff by the JAMS
Resolution Center on November 15, 2023, in the matter styled, DISH Wireless
L.L.C. v. VP Wireless, Inc. d/b/a VIP Wireless Maywood, Case No. 32555, be
confirmed pursuant to 9 U.S.C. § 9; and;
• 	That judgment enter in favor of the plaintiff and against the defendant in the
amount of $118,831.50 — an amount comprised of liquidated and monetary
damages, reasonable attorney’s fees, and administrative costs and expenses as set
forth in the Final Arbitration Award.1
1 Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not
consider frivolous, conclusive, or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1).
Additionally, the failure to file written objections to the proposed findings and recommendations
within fourteen days after being served with a copy may bar the aggrieved party from appealing
the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by
the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties must consult and comply
with the District Judge’s practice standards for any specific requirements concerning the filing
and briefing of objections.
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Respectfully submitted this 19th day of March, 2025, at Denver, Colorado.
BY THE COURT:
Cyrus Y. Chung
United States Magistrate Judge
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