Opinion
Civil Action 22-cv-01117-KLM
06-05-2023
BAXTER CONSTRUCTION COMPANY, LLC, Plaintiff, v. SF CONSTRUCTION, INC., Defendant.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Kristen L. Mix, United States Magistrate Judge
This matter is before the Court on the Order to Show Cause [#37] issued on May 2, 2023, ordering Defendant SF Construction, Inc. (“SFC”) to show cause why the Court should not recommend that default and default judgment be entered against it based on its failure to obtain counsel. By way of background, by Minute Order [#36] of March 27, 2023, the Court permitted Attorneys Alyson Evett and Nathan Osborn and the law firm of Montgomery Little to withdraw as counsel for Defendant SFC. In that Minute Order [#36], SFC was advised that a corporation, partnership, or other legal entity Amay not appear without counsel admitted to the bar of this court ....@ Id. at 2 (citing D.C.COLO.LAttyR 6). Accordingly, the Court ordered new counsel for Defendant SFC to enter an appearance on or before April 26, 2023, and warned SFC that “absent prompt appearance of substitute counsel, pleadings and papers may be stricken, and default judgment or other sanctions may be imposed.” Minute Order [#36] at 2 (quoting D.C.COLO.LAttyR 5(b).
''[#37]'' is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
When new counsel did not enter an appearance on behalf of SCF, the Court issued the Order to Show [#37], ordering that SFC show cause by May 18, 2023, why the Court should not recommend that default and default judgment be entered against it. SFC did not comply with the Order to Show Cause, and to date, new counsel has not entered an appearance on behalf of Defendant SFC. As the Court advised in the Order to Show Cause [#37], this Court has authority pursuant to Fed.R.Civ.P. 16(f) and Rule 37(b)(2)(A) to impose a number of sanctions, including rendering a default judgment, against a party that does not comply with a court order. See Order to Show Cause [#37] at 1-2. Moreover, SFC cannot proceed in this manner without counsel, as it has been previously warned. Accordingly, the Court finds that entry of default and a default judgment may be appropriate as to SFC. See Big O Tires, LLC v. Black Toad Enters., LLC, No. 14-cv-00824-RM-MJW, 2014 WL 4638398 (D. Colo. Sept. 17, 2014) (affirming a recommendation that default and default judgment be entered against a corporation when it failed to obtain counsel in response to an order to show cause, and stating that a default judgment may enter against an unresponsive party who fails to defend a lawsuit and halts the adversary process because “the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights”).
Similar circumstances to the Big O Tires case are present in this matter, in that SFC, a corporate defendant has been twice ordered to obtain counsel and yet has failed to do so. Moreover, SFC failed to respond in any manner to the Order to Show Cause [#37], and was warned that failure to respond and show good cause for its neglect of this case will result in the Court issuing an order to enter default and a default judgment against it Based on the foregoing, IT IS HEREBY RECOMMENDED that default and default judgment be entered against Defendant SFC.
IT IS FURTHER ORDERED that the Order to Show Cause [#37] is made ABSOLUTE.
IT IS FURTHER ORDERED that this case shall be assigned to a District Judge under D.C.COLO.LCivR 40.1(c)(3)(a) and D.C.COLO.LCivR 40.1(a).
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).