OPINION & ORDER This action arises from claims brought by John F. Levy (“Levy”) against Defendant Singularity Future Technology Ltd. f/k/a Sino-Global Shipping America Ltd. (“Singularity”) seeking reimbursement and advancement of reasonable legal fees, costs, and expenses incurred in connection with defending the action captioned Crivellaro v. Singularity Future Technology Ltd., 22-cv-7499-BMC (E.D.N.Y. Dec. 9, 2022) (the “Securities Action”). On May 9, 2024, I issued an Opinion and Order (the “May Order”) denying without prejudice Levy’s motion for default judgment against Singularity. The basis for this court’s jurisdiction and the standard for issuing a default judgment are set forth in that decision. Levy has now filed an amended complaint, and Singularity has again failed to answer or respond. For the reasons set forth below, I grant Levy’s renewed motion for default judgment as to liability and hold the amount of damages in abeyance pending further submissions. I. BACKGROUND Familiarity with the factual allegations in this case, as detailed in the May Order, is presumed, and I recite only the additional facts alleged in the amended complaint that are relevant to resolving the instant motion. The May Order concluded that “Levy [did] not establish liability because he ha[d] not alleged that he met both requirements in Article VI.7 [of Singularity's Articles of Incorporation] that would entitle him to advancement.” Specifically, although Levy adequately alleged that he satisfied Article VI.7′s requirement of a written statement of a good faith belief that he meets the requisite standard of conduct that would entitle him to advancement, he did not adequately allege that he provided Singularity with a written undertaking to repay the advance if it is ultimately determined that he does not meet the standard of conduct. Consequently, Levy’s motion for default judgment was denied without prejudice. On May 24, 2024, Levy filed an amended complaint. The facts set forth in the amended complaint are almost identical to those alleged in the original complaint. The two exceptions are the additional legal fees and expenses that have accrued since the initiation of this action (Am. Compl.
78, 92) and the additional allegations regarding the executed undertaking presented to Singularity. Levy alleges that on May 15, 2024, he personally presented to Singularity an executed undertaking as required under Article VI.7(a)(2) of the Articles of Incorporation. Id. 55. He also alleges that, on May 20, 2024, through his counsel, he presented to Singularity the executed undertaking. Id. 56. The executed written undertaking is attached to Levy’s amended complaint as Exhibit A. As of the date of the amended complaint, Singularity had not responded to the undertaking. Id. 58. When Singularity failed to answer or respond to the amended complaint, on July 15, 2024, the Clerk of Court entered a certificate of default against Singularity. On August 6, 2024, Levy moved for a default judgment. To date, Singularity has not appeared in this case. II. LIABILITY FOR DAMAGES A. Breach of Contract Under Virginia law, Levy must allege (1) Singularity had a legally enforceable obligation; (2) Singularity breached that obligation; and (3) Levy suffered injury or harm as a result of the breach. Enomoto v. Space Adventures, Ltd., 624 F. Supp. 2d 443, 449 (E.D. Va. 2009).1 Under the Articles of Incorporation — which have the force and effect of a binding contract — Singularity has an obligation to reimburse and advance legal fees when (i) a person is a party to a proceeding brought by or on behalf of shareholders by reason of the fact that he is or was an officer or director of Singularity; (ii) the director or officer provides a written statement of a good faith belief that he meets the standard of conduct described in Article VI.3; and (iii) the director or officer enters into a written undertaking to repay the advance if it is ultimately determined he does not meet the standard of conduct. As set forth in the May Order, Levy has adequately alleged that he is a defendant in the Securities Action by reason of his position as a former director of Singularity and that he provided to Singularity a written statement of his good faith belief. See May Order at 5-6. Levy has now also adequately alleged that he provided Singularity with a written undertaking. Levy both personally and through his counsel presented a written undertaking offering to repay the advance if it is determined that he does not meet the standard of conduct. Am. Compl.
