Greentree Transportation Co. v. Speedy Heavy Hauling, Inc. et al

Filing 48

ORDER. The Order to Show Cause 42 is made ABSOLUTE and the Clerk of Court is directed to enter DEFAULT against Defendants pursuant to Fed. R. Civ. P. 55 (a). Any Motion for Default Judgment pursuant to Fed. R. Civ. P. 55(b) shall be filed on or bef ore 7/29/2011. The 22 Plaintiff's Motion to Amend the Amended Stipulated Scheduling and Discovery Order and 23 Motion for Leave to File a Motion to Strike Insufficient Defense in Defendant Speedy's Answer are DENIED as moot, by Magistrate Judge Kristen L. Mix on 6/14/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02657-JLK-KLM
GREENTREE TRANSPORTATION CO., a Delaware corporation,
Plaintiff,
v.
SPEEDY HEAVY HAULING, INC., a Colorado corporation, and
ENQUEST ENERGY SERVICES CORP., a Canadian corporation,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Order to Show Cause issued on April 28,
2011 [Docket No. 42] and amended on May 16, 2011 [Docket No. 44].
The instant lawsuit involves a contract dispute regarding freight charges and
services. Specifically, Plaintiff asserts claims against Defendant Speedy for breach of
contract, promissory estoppel, accounting and quantum meruit and claims against
Defendant Speedy’s alleged parent company, Defendant EnQuest, for promissory estoppel,
unjust enrichment, fraudulent inducement and piercing the corporate veil. See Scheduling
Order [#25] at 3. After the Scheduling Order was entered, this matter was referred to me
for all pretrial purposes [Docket No. 19].
On April 14, 2011, the Court issued an Order permitting defense counsel to withdraw
from representation of Defendants [Docket No. 38]. However, the Court noted that
because Defendants are corporations and cannot appear in this Court without legal
representation, Harrison v. Wahatoyas, LLC, 253 F.3d 552, 556 (10th Cir. 2001);

D.C.COLO.LCivR 83.3D., new counsel must enter an appearance on their behalf on or
before April 25, 2011. See Order [#38] at 2. Moreover, the Court set a deadline for
Defendants to respond (through counsel) to several outstanding motions. See id. The
Court also informed Defendants that their failure to comply with my Order “may result in the
entry of default judgment . . . or other sanctions imposed.” Id.
Defendants did not comply with my Order and the Court ordered Defendants to
show cause why default should not be entered against them pursuant to Fed. R. Civ. P.
55(a) [Docket No. 42]. Copies of all relevant Orders were mailed directly to Defendants at
the addresses given by withdrawing counsel and, separately, at the address for Defendant
EnQuest located by the Court after conducting an Internet search [Docket Nos. 38, 39, 44
& 45]. The deadline for Defendants to respond to the Order to Show Cause has passed,
and no response was received.
To date, no counsel has entered an appearance for Defendants and no request for
extension of time to retain counsel has been made. Moreover, Defendants have failed to
respond to Plaintiff’s outstanding motions despite being ordered to do so by the Court.
Based on the foregoing, I find that Defendants have “failed to . . . otherwise defend” this
lawsuit.1 See Fed. R. Civ. P. 55(a); Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912,
917 (3d Cir. 1992) (recognizing that Rule 55(a)’s “otherwise defend” language provides the
court with inherent authority to enter default even if a party has timely answered); Eagle

1

Despite the fact that the relevant pleadings have been returned as undeliverable to
Defendant EnQuest [Docket Nos. 43, 46 & 47], none were returned as undeliverable to
Defendant Speedy. Defendant Speedy, which is alleged to be a subsidiary of Defendant
EnQuest, has neither responded to the Court’s Orders nor had an attorney enter an appearance
on its or its alleged parent’s behalf.

2

Assocs. v. Bank of Montreal, 926 F.2d 1305, 1310 (2d Cir. 1991) (authorizing entry of
default where party failed to comply with order to obtain counsel); see also Yates v.
Portofino Equity & Mgmt Co., No. 08-cv-00324-PAB-MJW, 2009 WL 2588831, at *3 (D.
Colo. Aug. 17, 2009) (same).2 Accordingly,
IT IS HEREBY ORDERED that the Order to Show Cause [#42] is made ABSOLUTE
and the Clerk of Court is directed to enter DEFAULT against Defendants pursuant to Fed.
R. Civ. P. 55(a).
IT IS FURTHER ORDERED that any Motion for Default Judgment pursuant to Fed.
R. Civ. P. 55(b) shall be filed on or before July 29, 2011. The Motion shall be served upon
Defendants by mailing a copy, along with this Order, to Defendants’ last known business
addresses. In addition, the Motion and this Order shall be served upon Defendant EnQuest
by mailing a copy to “610 25 Road, Grand Junction, Colorado” 81505 (which is the address
listed as Defendant EnQuest’s principle domestic office in Plaintiff’s Complaint [Docket No.
1 at 2]).
IT IS FURTHER ORDERED that in addition to mailing this Order to Defendants at
the addresses currently listed on the Court’s electronic case filing system, the Clerk shall
mail a copy of this Order to Defendant EnQuest at 610 25 Road, Grand Junction, Colorado
81505.

2

Although Rule 55(a) references only the clerk’s authority to enter default, “[t]he fact that
Rule 55(a) gives the clerk authority to enter a default is not a limitation on the power of the court
to do so.” 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2682, at 19 (3d
ed. 1998). Further, although the Court could arguably recommend that judgment be entered
against Defendants as a sanction pursuant to Fed. R. Civ. P. 41(b) and Ehrenhaus v. Reynolds,
965 F.2d 916 (10th Cir. 1992), the Court chooses not to do so here given the clear application
of Fed. R. Civ. P. 55(a) and the lack of briefing regarding the amount for which judgment should
be entered.

3

IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend the Amended Stipulated
Scheduling and Discovery Order and Motion for Leave to File a Motion to Strike Insufficient
Defense in Defendant Speedy’s Answer [Docket Nos. 22 & 23] are DENIED as moot.

Dated: June 14, 2011
BY THE COURT:
s/ Kristen L. Mix
United States Magistrate Judge
Kristen L. Mix

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