Opinion
Civil Action No. 10-cv-01899-RBJ-KLM
06-26-2012
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 Avedon's Motion for Default Judgment Against Hunters Green [Docket No. 125; Filed February 17, 2012] (the "Motion"). The Motion is referred to this Court for resolution. [#156]. On December 29, 2011, the Court issued an Order to Show Cause directed to Third-Party Defendant Hunters Green Marketing, Inc. ("Hunters Green"), instructing Hunters Green to show cause as to why default should not be entered against it due to its failure to obtain counsel to appear on its behalf. See [#120]. To date, counsel has not entered an appearance on behalf of Hunters Green.
The Court made absolute the Order to Show Cause on January 17, 2012. [#122]. On January 18, 2012, the Clerk of Court entered default against Hunters Green pursuant to Fed. R. Civ. P. 55(a). [#123]. Defendants/Counterclaimants/Third-Party Plaintiffs Avedon Engineering, Inc., Airius LLC, and Airius IP Holdings, LLC (collectively, "Avedon") then filed the Motion at issue, requesting entry of default judgment against Hunters Green in the amount of $4,623,000, plus attorneys' fees and costs. See [#125] at 10.
Avedon has asserted twelve counterclaims in total, and nine of the twelve counterclaims are brought against Hunters Green. See [#70]. All counterclaims asserted against Hunters Green are also asserted against other parties to this action; no counterclaim is asserted solely against Hunters Green, or against only Hunters Green and Third-Party Defendant Buell, who is the owner of Hunters Green. Id.; Sched. Ord., [#77] at 10, ¶ 7. Avedon has requested entry of judgment against Plaintiffs and Third-Party Defendants jointly and severally. [#70] at 38-39, ¶ 145.
Third-Party Defendant Buell filed an Answer to the counterclaims on February 24, 2011. [#81]. Plaintiffs filed an Answer to the counterclaims on February 14, 2011, and a presently-pending Motion for Partial Summary Judgment as to counterclaims one, two, three, six, seven, eight, nine, ten, eleven, and twelve on February 29, 2012. See [## 79, 128].
"[W]hen one of several defendants who is alleged to be jointly liable defaults, judgment should not be entered against him until the matter has been adjudicated with regard to all defendants, or all defendants have defaulted." Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145, 147 (10th Cir. 1985). The purpose of this rule is "the avoidance of the problem of inconsistent liability determinations among joint defendants." Travelers Cas. & Sur. Co. of Am. v. Richard E. Gash Elec. Co., No. 08-cv-00813-PAB-KLM, 2009 WL 508165, at *3 (D. Colo. Feb. 27, 2009) (citing Hunt, 770 F.2d at 147). The Hunt rule has been extended to joint and several liability in tort and contract. See Richard E. Gash Elec. Co., 2009 WL 508165 at *3, *4.
As stated, Plaintiffs and the remaining two Third-Party Defendants are actively defending Avedon's counterclaims. As Avedon requests that Plaintiffs and Third-Party Defendants be held jointly and severally liable for damages, the Court finds that the Hunt rule applies, and judgment as to Hunters Green should not be entered until this matter has been adjudicated with regard to all Plaintiffs and Third-Party Defendants, or all Plaintiffs and Third-Party Defendants have defaulted. Accordingly,
IT IS HEREBY ORDERED that Avedon's Motion for Default Judgment Against Hunters Green [#125] is DENIED WITHOUT PREJUDICE pending adjudication of the counterclaims against all Plaintiffs and Third-Party Defendants. See Richard E. Gash Elec. Co., 2009 WL 508165 at *4 (denying motion for default judgment without prejudice due to Hunt rule).
BY THE COURT:
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Kristen L. Mix
United States Magistrate Judge