Pierre Akkelian v. Gagik Gevorkyan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PIERRE AKKELIAN,
Plaintiff-Appellee,
v.
GAGIK GEVORKYAN,
Defendant-Appellant.
No. 19-55536
D.C. No. 2:17-cv-01446-PSG-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding
Argued and Submitted December 8, 2020
Pasadena, California
Before: GRABER and COLLINS, Circuit Judges, and BOULWARE,** District
Judge.
Gagik Gevorkyan appeals the district court’s various orders concerning the
entry of default, and ultimately default judgment, against him. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing for abuse of discretion, see United
States v. Signed Personal Check No. 730 of Yubran S. Mesle (“Mesle”), 615 F.3d
1085, 1091 (9th Cir. 2010); Pena v. Seguros La Comercial, S.A., 770 F.2d 811, 814
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
** The Honorable Richard F. Boulware II, United States District Judge for the
District of Nevada, sitting by designation.
FILED
JAN 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(9th Cir. 1985), we affirm.
Even if the other relevant factors—the merits of the defendant’s defenses
and the prejudice to the plaintiff—would favor setting aside a default judgment, we
have held that “‘the trial court’s denial of a motion to vacate a default judgment
will be affirmed if the defendant’s own culpable conduct prompted the default.’”
American Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1109 (9th
Cir. 2000) (quoting In re Hammer, 940 F.2d 524, 526 (9th Cir. 1991)). “‘[A]
defendant’s conduct is culpable if he has received actual or constructive notice of
the filing of the action and intentionally failed to answer.’” TCI Group Life Ins.
Plan v. Knoebber, 244 F.3d 691, 697 (9th Cir. 2001) (emphasis in original)
(citation omitted), overruled on other grounds by Egelhoff v. Egelhoff ex. rel.
Breiner, 532 U.S. 141 (2001). The district court assumed that, as applied to this
case, Gevorkyan’s conduct would be “intentional” only if “‘there is no explanation
of the default inconsistent with a devious, deliberate, willful, or bad faith failure to
respond.’” Mesle, 615 F.3d at 1092 (citation omitted). The court found that this
standard was satisfied here, expressly holding that Gevorkyan’s default “was the
product of deliberate and willful conduct designed to impede the orderly progress
of this action.” We find no basis to set aside this conclusion.
As the district court noted, Gevorkyan and his co-defendant “refused to
cooperate with and pay their attorneys, which resulted in the attorneys withdrawing

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from the representation.” Gevorkyan failed to respond to discovery requests, show
up for his deposition, appear for a mediation session, or appear for a final pre-trial
conference that had been scheduled more than six months earlier. Gevorkyan
claimed that he did not attend the final pretrial conference because he was in
Russia from mid-September 2018 until early December 2018; he did not receive
the letters mailed by Plaintiff’s counsel until after he returned; and he did not have
access to the email address that Plaintiff’s counsel also used to send him
communications because he had switched to a new smartphone in early 2018.
Even if we were to assume that the district court erred in declining to credit
Gevorkyan’s claim that his switch of cellphones somehow deprived him of access
to his former email account, the court did not abuse its discretion in finding
Gevorkyan’s explanation to be inadequate in light of (1) the fact that the initial
pretrial conference date was set in February 2018, when he still had counsel; and
(2) even before departing for Russia in September, Gevorkyan had already refused
to cooperate with his attorneys and had failed to respond to discovery.
On appeal, Gevorkyan insists that the district court should have given more
weight to his alleged inability to understand English and consequent reliance on his
codefendant to communicate with counsel. This argument is difficult to square
with the fact that Gevorkyan provided two lengthy English-language declarations
under penalty of perjury, and there is no indication in the record that, in signing

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them, he had relied on a translation. The district court’s finding of culpability was
not an abuse of discretion, and we therefore affirm the default judgment against
Gevorkyan.
AFFIRMED.

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