Opinion
Civil Action Nos. 02-CV-6696, 04-CV-0154.
September 15, 2004
MEMORANDUM AND ORDER
By Order of the Court dated March 28, 2003, default judgment in the amount of $1,011,510.80 was entered against Defendants Shcherbakov and SAJE International, Inc. ("SAJE International") in civil action number 02-cv-6696. In civil action number 04-cv-0154, Plaintiff filed an action in the nature of a creditor's bill against Defendant SAJE Technologies, Inc. ("SAJE Technologies"), SAJE International's alleged successor, seeking to enforce the judgment in 02-cv-6696. Defendants have moved in both cases for the Court to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). For the reasons that follow, Defendants' Motions will be denied.
I. Background
Plaintiff John Bonner filed the Complaint in civil action number 02-cv-6696 against Eduard Shcherbakov and SAJE International on August 12, 2002. The complaint was served on August 15, 2002. See Affidavit of Service (docket no. 2 at 2). Default was entered by the Clerk of the Court on September 5, 2002. Following a hearing on damages, final judgment in the amount of $1,011,510.80 was entered by the Court on March 28, 2003. See Order of the Court, March 28, 2003. Additional relief was also ordered. Id. Almost one year later, on February 17, 2004, Defendants filed Motions to Set Aside Default Judgment and Motions to Dismiss for Failure to State a Claim under Fed.R.Civ.P. 12(b)(6).
Initially, default judgment was entered only on Count One of the Complaint. That judgment was expanded to include the remaining counts on February 13, 2003.
Each Motion was filed simultaneously in both cases. See 02-cv-6996, docket no. 74; 04-cv-0154, docket no. 33. On September 3, 2004, this Court denied Defendants' Motions to Set Aside Default Judgment.
II. Legal Standard
When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff.Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
III. Analysis
Regarding 02-cv-6696, the motion to dismiss must be denied as untimely. This case was terminated on March 31, 2003, and on September 3, 2004, this Court issued an Order Denying Defendants' Motion to Open Default Judgment.
Both parties continue to file motions, requests, responses, and the like under this case number. However, 02-cv-6696 has been closed since the default judgment was entered against Defendants Saje International and Eduard Shcherbakov on March 31, 2003.
Civil action number 04-cv-0154 is an action to recover for equitable fraud, fraudulent conveyance of assets, and other wrongful conduct in an effort to place the assets of Defendants Saje International and Eduard Shcherbakov beyond reach of the U.S. Marshall in trying to satisfy the Judgment entered in 02-cv-6696. In the Complaint, Plaintiff alleges that Saje Technologies, is a Pennsylvania corporation formed by Defendant Shcherbakov to carry on the business and take over the assets of Defendant Saje International, after Defendant Shcherbakov became aware that Plaintiff was taking legal actions to pursue his claims. See Plaintiff's Complaint 04-cv-0154 at ¶ 1. Plaintiff further claims that Defendants are continuing to conduct their business operations with the same employees, the same rented cars, at the same business location and using the same web address, but under the new corporate name of Saje Technologies. See id. at ¶ 14. Plaintiff further contends that Defendant Saje Technologies is the alter ego and/or successor-in-interest of Defendants Saje International and Eduard Shcherbakov, who are the judgment debtors in 02-cv-6696.
Plaintiff states that the assets of Saje International were transferred to Saje Technologies for little or no legal consideration and for the primary purpose of defrauding Plaintiff. Plaintiff's Complaint 04-cv-0154 at ¶ 15.
Defendants claim that SAJE Technologies was not named in civil action number 02-cv-6696 and had no opportunity to be heard in the action. Defendants' Motion to Dismiss ¶ 2-3. However, at this stage of the proceedings, the Court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to the plaintiff. Angelastro, 764 F.2d at 944. The question whether Saje Technologies is the alter ego or legal successor of Saje International for the purposes of the default judgment will be resolved on summary judgment or at trial. Assuming the facts pled to be true, Plaintiff's Complaint clearly states a cause of action. Accordingly, the claims will not be dismissed under Fed.R.Civ.P. 12(b)(6).
IV. Conclusion
Plaintiff's claims will not be dismissed for failure to state a claim. An appropriate Order follows.
ORDER
AND NOW, this day of September, 2004, upon consideration of Defendants' Motions to Dismiss (02-6696 docket no. 43; 04-0154 docket no. 6), and the responses thereto, it is ORDERED that the Motions are DENIED for the reasons stated in the accompanying Memorandum.