Opinion
Civil Action No. 13-cv-03363-CMA-KMT
08-21-2020
SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. JESSE W. ERWIN, JR., SETH A. LEYTON, LEWIS P. MALOUF, and STONEROCK CAPITAL GROUP, LLC, Defendants, and DANIEL SCOTT CODDINGTON, CODDINGTON FAMILY TRUST, and JOANNA I. COLUMBIA ALSO KNOWN AS JOANNA I. ORNOWSKA, Relief Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Plaintiff Securities and Exchange Commission's ("SEC") "Motion to Strike Answer of Coddington Family Trust" (Doc. No. 234, filed July 28, 2020).
The SEC filed its Complaint in this matter on December 12, 2013. (Doc. No. 1.) On January 14, 2014, the SEC served the summons and complaint upon Coddington Family Trust and filed the affidavit of service on January 15, 2014. (Doc. No. 13.) On March 18, 2014, Coddington Family Trust, then represented by attorney David A. Zisser, filed an Answer. (Doc. No. 52.) On January 20, 2015, Mr. Zisser withdrew as counsel for Coddington Family Trust. (Doc. No. 99.) On August 3, 2015, attorney Jean-Jacques Cabou entered his appearance as counsel for Coddington Family Trust and other defendants. (Doc. No. 136.) On October 18, 2017, Mr. Cabou withdrew as counsel for Coddington Family Trust. (Doc. No. 186.) Coddington Family Trust has not been represented by counsel since October 18, 2017.
On November 11, 2018, this court ordered Coddington Family Trust to retain counsel prior to a status conference set for January 22, 2018. (Doc. No. 191.) Coddington Family Trust did not retain counsel for that status conference. (See Doc. No. 200.) On March 3, 2020, this court held another status conference at which Coddington Family Trust did not appear and was not represented by counsel. (See Doc. No. 216.) No new attorney has entered an appearance to represent Coddington Family Trust in this matter.
"As a general matter, a corporation or other business entity can only appear in court through an attorney and not through a non-attorney corporate officer appearing pro se." Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556 (10th Cir. 2001); see also Riviera Drilling & Exploration Co. v. Gunnison Energy Corp., 412 F. .App'x 89, 92 (10th Cir. 2011) ("[A] corporation cannot appear pro se."); Tal v. Hogan, 453 F.3d 1244, 1254 (10th Cir. 2006) ("It has been our long-standing rule that a corporation must be represented by an attorney to appear in federal court."). "The continued failure of the corporate defendant to obtain new counsel may result in a default judgment against it." Bank of Commerce & Trust Co. v. Strauss, No. 07-1122-JTM, 2008 WL 191396, at *1 (D. Kan. Jan. 22, 2008).
Local Attorney Rule 5(b) provides that, where the client of a withdrawing attorney is a corporation, partnership, or other legal entity, "absent prompt appearance of substitute counsel, pleadings and papers may be stricken, and default judgment or other sanctions may be imposed against the entity." D.C.COLO.LAttyR 5(b). Coddington Family Trust has been unrepresented in this matter for over two years, even after being ordered to retain counsel. As such, the entry of default against Coddington Family Trust is appropriate, and its answer should be stricken.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that the "Motion to Strike Answer of Coddington Family Trust" (Doc. No. 234) be GRANTED, that Coddington Family Trust's Answer (Doc. No. 52) be STRICKEN, and that the Clerk be directed to enter default against Coddington Family Trust, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and 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. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
Dated this 21st day of August, 2020.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge