Stich et al v. BAC Home Loans Servicing, LP

Filing 41

ORDER denying 38 Plaintiffs Motion to Enter the Defendants Default and Defendants late-filed Answer to the Complaint 40 is ACCEPTED. by Judge Christine M. Arguello on 4/29/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-01106-CMA-MEH
THOMAS STICH,
Plaintiff,
v.
BAC HOME LOANS SERVICING, LP,
Defendant.

ORDER DENYING MOTION TO ENTER THE DEFENDANT’S DEFAULT

This matter is before the Court on Plaintiff Thomas Stich’s Motion to Enter the
Defendant’s Default, which was filed on April 27, 2011. (Doc. # 38.) Defendant BAC
Home Loans Serving, LP (“BAC Home Loans”) promptly responded on April 28 (Doc.
# 39) and filed its Answer to the Complaint (Doc. # 40). For the reasons discussed
below, Plaintiff’s Motion is denied.
I. BACKGROUND
On May 12, 2010, Plaintiff Thomas Stich and former Plaintiff Icon Home Health,
LLC filed a Complaint asserting the following five claims against Defendant:
(1) willful violation of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681s(b);
(2) negligent violation of the FCRA, 15 U.S.C. § 1681s(b); (3) outrageous conduct;
(4) disparagement; and (5) preliminary injunctive relief. On July 26, 2010, Defendant
filed a Motion to Dismiss. (Doc. # 15.) On March 29, 2011, the Court granted in part

and denied in part the Motion to Dismiss. (Doc. # 33.) Specifically, the Court dismissed
Icon Home Health from this action, dismissed in part Plaintiffs first and second claims
for violations of the Fair Credit Reporting Act (“FCRA”) to the extent that they concern
Defendant’s reports about the timeliness of Mr. Stich’s September-December 2009
payments and to the extent they are premised on business-related damages, and
dismissed the claim for preliminary injunctive relief.
II. PLAINTIFF’S MOTION TO ENTER THE DEFENDANT’S DEFAULT
Upon review of the parties’ briefs, it is apparent that the instant Motion was filed
as a result of a significant failure of communication between the parties’ attorneys and
Plaintiff’s counsel’s failure to confer in good faith with opposing counsel as required
under D.C.COLO.LCivR 7.1. In support of the instant Motion, Plaintiff’s counsel asserts
that, pursuant to the Fed. R. Civ. P. 6 and 12, Defendant’s answer to Plaintiff’s
remaining claims was due on or before April 15, 2011, but Defendant failed to comply
with this deadline. Via e-mail correspondence dated April 21, 2011, Plaintiff’s counsel
apprised Defendant’s counsel of the failure to answer and, in response, Defendant’s
counsel sought permission to late file the answer. (Doc. # 38-1.) However, in lieu of
responding to opposing counsel’s request, Plaintiff’s counsel filed the instant Motion.
BAC Home Loans’ intention of vigorously defending against Plaintiff’s claims is
apparent from its prompt response to the instant Motion and its filing an Answer. Due to
Plaintiff counsel’s failure to comply with the Court’s Local Rules and confer in good faith

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in advance of filing this Motion, the Court finds that denial of Plaintiff’s Motion to Enter
the Defendant’s Default (Doc. # 38) is warranted.
III. CONCLUSION
Accordingly, IT IS ORDERED THAT Plaintiff’s Motion to Enter the Defendant’s
Default (Doc. # 38) is DENIED and Defendant’s late-filed Answer to the Complaint (Doc.
# 40) is ACCEPTED.
DATED: April

29

, 2011
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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