Opinion
Civil Action No. 10-cv-01899-RBJ-KLM
01-17-2012
JEFF BENTON, individually, and ZOO FANS, INC., a Colorado corporation, Plaintiffs/Counterclaim Defendants, v. AVEDON ENGINEERING, INC., a Colorado corporation, AIRIUS IP HOLDINGS, LLC, a Colorado limited liability company, and AIRIUS, LLC, a Colorado limited liability company, Defendants/Counterclaimants/Third-Party Plaintiffs, v. WILLIAM F. BUELL, JR., an individual, HUNTERS GREEN MARKETING, INC., a Kentucky corporation, d/b/a Buell and Buell, and CORY R. COCHRAN, an individual, Third-Party Defendants.
ORDER
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on an ex parte letter authored by "Bill Buell for Hunter's Green Marketing, Inc." and on the Order to Show Cause issued December 29, 2011 [#120]. In the letter, Mr. Buell informs the Court that Defendant Hunters Green Marketing, Inc. "does not have the funds to retain an attorney." The Court construes this letter as a response to the Order to Show Cause, and as notice that counsel will not be entering an appearance on behalf of Defendant Hunters Green Marketing, Inc. Because Defendant Hunters Green Marketing, Inc. is a corporation and cannot appear in this Court without legal representation, Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556 (10th Cir. 2001); D.C.COLO.LCivR 83.3D., the Court finds that Defendant Hunters Green Marketing, Inc. has "failed to .. . otherwise defend" this lawsuit. See Fed. R. Civ. P. 55(a); Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912, 917 (3d Cir. 1992) (recognizing that Rule 55(a)'s "otherwise defend" language provides the court with inherent authority to enter default even if a party has timely answered); Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1310 (2d Cir. 1991) (authorizing entry of default where party failed to comply with order to obtain counsel); see also Yates v. Portofino Equity & Mgmt Co., No. 08-cv-00324-PAB-MJW, 2009 WL 2588831, at *3 (D. Colo. Aug. 17, 2009) (same). Accordingly,
IT IS HEREBY ORDERED that the Order to Show Cause [#120] is made ABSOLUTE and the Clerk of Court is directed to enter DEFAULT against Defendant Hunters Green Marketing, Inc. pursuant to Fed. R. Civ. P. 55(a).
Although Rule 55(a) references only the clerk's authority to enter default, "[t]he fact that Rule 55(a) gives the clerk authority to enter a default is not a limitation on the power of the court to do so." 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2682, at 19 (3d ed. 1998). Further, although the Court could arguably recommend that judgment be entered against Defendant Hunters Green Marketing, Inc. as a sanction pursuant to Fed. R. Civ. P. 41(b) and Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), the Court chooses not to do so here given the clear application of Fed. R. Civ. P. 55(a) and the lack of briefing regarding the amount for which judgment should be entered.
IT IS FURTHER ORDERED that any Motion for Default Judgment pursuant to Fed. R. Civ. P. 55(b) against Defendant Hunters Green Marketing, Inc. shall be filed on or before February 17, 2012. The Motion shall be served on Defendant Hunters Green Marketing, Inc. by mailing a copy of the Motion, along with this Order, to Defendant Hunters Green Marketing, Inc.'s last known business address.
IT IS FURTHER ORDERED that the Clerk of Court is directed to docket the ex parte letter contemporaneously with this Order.
BY THE COURT:
_____________________
Kristen L. Mix
United States Magistrate Judge