Summary
granting default judgment to compel arbitration, but denying petitioner's request that it be permitted to nominate an arbitrator because such relief was not sought in its petition to compel arbitration
Summary of this case from SWISS SKIES AG v. AIR LUXOR, S.A.Opinion
03 Civ. 5600 (LAK)
December 12, 2003
ORDER
This is a petition to compel arbitration pursuant to an arbitration clause contained in a so-called GENCON charter party. The respondents are in default, and petitioner moves for a default judgment compelling arbitration and permitting it to nominate an arbitrator on behalf of the respondents.
There is no question that petitioner is entitled to a default judgment. The petition to compel arbitration, however, insofar as is relevant here, seeks only an order directing respondents to arbitrate the claim in issue. It does not seek permission to nominate an arbitrator on respondents' behalf.
Fed.R.Civ.P. 54(c) provides that "[a] judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment." This is only fair, as a party served with process is entitled to notice of the possible consequences of a default. In consequence, petitioner is not entitled to an order authorizing it to nominate an arbitrator on respondents' behalf.
The motion for a default judgment is granted to the extent that respondents are directed to arbitrate petitioner's claim that they breached the charter party's unsafe port and berth warranty. It is otherwise denied. The Clerk shall enter judgment accordingly and close the case.
SO ORDERED.