States Resources Corp. v. Nature's Way Dairy LLC et al

Filing 47

ORDER granting in part and denying in part 44 Plaintiff's Verified Motion for Entry of Default Judgment Against Defendants Nature's Way Dairy LLC, and George T. Cook. Judgment shall enter in favor of plaintiff and against defendants Natur e's Way and Cook for unpaid indebtedness consisting of principal in the amount of $183,948.83, and interest in the amount of $26,147.39 as of 1/12/2011 and interest after 1/12/2011 at the rate of 9.25% per annum, being $47.26463 per day. Plaintiff may have its costs upon compliance with D.C.COLO.LCivR 54.1. Plaintiff is granted leave to file a post-judgment motion for attorney's fees pursuant to D.C.COLO.LCivR 54.3. By Judge Philip A. Brimmer on 6/7/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 10-cv-00576-PAB-KMT
STATES RESOURCES CORP., an Iowa corporation,
Plaintiff,
v.
NATURE’S WAY DAIRY LLC, a Colorado Limited Liability Company, and
GEORGE T. COOK, also known as George Trent Cook,
Defendants.

ORDER

This matter comes before the Court on plaintiff’s Verified Motion for Entry of
Default Judgment Against Defendants Nature’s Way Dairy LLC, and George T. Cook
[Docket No. 44]. In order to obtain a judgment by default, a party must follow the twostep process described in Federal Rule of Civil Procedure 55. First, he or she must
seek an entry of default from the Clerk of the Court under Rule 55(a). Second, after
default has been entered by the Clerk, the party must seek default judgment according
to the strictures of Rule 55(b). See Williams v. Smithson, No. 95-7019, 1995 WL
365988 at *1 (10th Cir. June 20, 1995) (unpublished table opinion) (citing Meehan v.
Snow, 652 F.2d 274, 276 (2nd Cir. 1981)); Nasious v. Nu-Way Real Estate, No. 07-cv01177-REB-MEH, 2008 WL 659667, at *1 (D. Colo. Mar. 6, 2008).
In this case, the Clerk of the Court entered default pursuant to Rule 55(a) against
defendant George T. Cook (“Cook”) on July 30, 2010, see Docket No. 17, and Nature’s

Way Dairy, LLC (“Nature’s Way”) on February 4, 2011, see Docket No. 41. In its
motion, plaintiff seek entry of default judgment pursuant to Rule 55(b) against Nature’s
Way and Cook.
The decision to enter default judgment is “‘committed to the district court’s sound
discretion . . . .’” Olcott v. Del. Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003) (quoting
Dennis Garberg & Assocs. v. Pack-Tech Int’l Corp., 115 F.3d 767, 771 (10th Cir.
1997)). When exercising that discretion, the Court considers that “[s]trong policies
favor resolution of disputes on their merits.” Ruplinger v. Rains, 946 F.2d 731, 732
(10th Cir. 1991) (quotations marks and citations omitted). “The default judgment must
normally be viewed as available only when the adversary process has been halted
because of an essentially unresponsive party.” Id. It serves to protect a plaintiff against
“interminable delay and continued uncertainty as to his rights.” Id. at 733.
Neither Nature’s Way nor Cook has sought relief from the entry of default or
otherwise attempted to participate in this litigation. Defendants may not simply sit out
the litigation without consequence. See Cessna Fin. Corp. v. Bielenberg Masonry
Contracting, Inc., 715 F.2d 1442, 1444-45 (10th Cir. 1983) (“[A] workable system of
justice requires that litigants not be free to appear at their pleasure. We therefore must
hold parties and their attorneys to a reasonably high standard of diligence in observing
the courts’ rules of procedure. The threat of judgment by default serves as an incentive
to meet this standard.”). One such consequence is that, upon the entry of default
against defendants, the well-pleaded allegations in the complaint are deemed admitted.
See Olcott, 327 F.3d at 1125; see also 10A Charles Wright, Arthur Miller & Mary Kane,

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Federal Practice & Procedure § 2688 (3d ed. 2010). “Even after default, however, it
remains for the court to consider whether the unchallenged facts constitute a legitimate
cause of action, since a party in default does not admit mere conclusions of law.” 10A
Charles Wright, Arthur Miller & Mary Kane, Federal Practice & Procedure § 2688 (3d
ed. 2010).
Plaintiff seeks to enforce a promissory note against Nature’s Way and a
guaranty of that note by Cook. The Court has reviewed the well-pleaded allegations in
plaintiff’s complaint [Docket No. 1] and finds that the facts alleged, accepted as true,
support the award of principal and interest requested. Plaintiff, however, further
requests an award of attorney’s fees pursuant to provisions in the note and guaranty
which provide for an award of reasonable attorney’s fees. See Docket No. 1-1 at 3,
¶ 15; 29, ¶ 11. Plaintiff has provided no support for the particular fee it has requested.
See Docket No. 44 at 6-7. Therefore, the Court will not grant such relief at this time.
Therefore, it is
ORDERED that plaintiff’s Verified Motion for Entry of Default Judgment Against
Defendants Nature’s Way Dairy LLC, and George T. Cook [Docket No. 44] is
GRANTED in part and DENIED in part. It is further
ORDERED that judgment shall enter in favor of plaintiff and against defendants
Nature’s Way and Cook for unpaid indebtedness consisting of principal in the amount
of $183,948.83, and interest in the amount of $26,147.39 as of January 12, 2011 and
interest after January 12, 2011 at the rate of 9.25% per annum, being $47.26463 per
day. Plaintiff may have its costs upon compliance with D.C.COLO.LCivR 54.1. It is

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further
ORDERED that plaintiff is granted leave to file a post-judgment motion for
attorney’s fees pursuant to D.C.COLO.LCivR 54.3.

DATED June 7, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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