Highline Capital Corp. v. CMFEF Property Holdings, LLC et al

Filing 22

OPINION AND ORDER ADOPTING 17 RECOMMENDATION, GRANTING 14 MOTION TO STRIKE, AND ENTERING DEFAULT. The Court ADOPTS the Recommendation 17 . The Plaintiffs Motion to Strike 14 is GRANTED, and the unsigned Answer 12 is STRICKEN pursuant to Fed . R. Civ. P. 11(a). Finding that service of process has been properly effected and there being no timely answer by the Defendants to the Amended Complaint, the Court directs the Clerk of the Court to enter the default of both Defendants pursuant to Fed. R. Civ. P. 55(a), by Judge Marcia S. Krieger on 08/10/09.(wjc, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Case No. 09-cv-00042-MSK HIGHLINE CAPITAL CORP., Plaintiff, v. CMFEF PROPERTY HOLDINGS, LLC d/b/a Lakeside Inn Hope Hull, and CALVIN FOWLER, Defendants. ______________________________________________________________________________ OPINION AND ORDER ADOPTING RECOMMENDATION, GRANTING MOTION TO STRIKE, AND ENTERING DEFAULT ______________________________________________________________________________ THIS MATTER comes before the Court pursuant to the March 23, 2009 Recommendation (# 17) of United States Magistrate Judge Michael E. Hegarty that the Plaintiff's Motion to Strike (# 14) the Defendants' Answer (# 12) be granted. More than 10 days have passed since the issuance of the Recommendation, and no party has filed objections. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). Where no party files objections to a recommendation, the Court applies whatever standard of review to that recommendation that it deems appropriate. Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir.1991). This Court has reviewed the recommendation under the otherwise applicable de novo standard of Fed. R. Civ. P. 72(b). Upon de novo review, the Court reaches the same conclusions as the Magistrate Judge did, and for essentially the same reasons. Although this Court might not necessarily agree that the requirement of Fed. R. Civ. P. 11(a) ­ that an unsigned pleading be "called to the [filing

party's] attention" ­ was satisfied by contents of the Plaintiff's Motion to Strike, this Court finds that the Magistrate Judge's Recommendation, which was served on the Defendants at their lastknown address, is sufficient to apprise them of the defect in the Answer on file and their need to file a properly-signed Answer. Notwithstanding that advisement, the Defendants continue to be in violation of Fed. R. Civ. P. 11(a) several months later. Accordingly, the Court agrees that the unsigned Answer should be stricken and default entered against the Defendants. The Court ADOPTS the Recommendation (# 17). The Plaintiff's Motion to Strike (# 14) is GRANTED, and the unsigned Answer (# 12) is STRICKEN pursuant to Fed. R. Civ. P. 11(a). Finding that service of process has been properly effected and there being no timely answer by the Defendants to the Amended Complaint, the Court directs the Clerk of the Court to enter the default of both Defendants pursuant to Fed. R. Civ. P. 55(a). Dated this 10th day of August, 2009 BY THE COURT:

Marcia S. Krieger United States District Judge