Morgan Stanley & Co. LLC v. Trimbach

Filing 19

ORDER granting 13 Motion for Default Judgment. Finding as moot 16 Report and Recommendations and 17 Report and Recommendations. Judgment shall issue for Morgan Stanley and against Mr. Trimbach in accordance with that award described herein. By Judge Raymond P. Moore on 9/23/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 13-cv-02294-RM-BNB
MORGAN STANLEY & CO., LLC., f/k/a Morgan Stanley & Co., Inc.,
Petitioner/Plaintiff,
v.
SCOTT ALLEN TRIMBACH, a/k/a Scott A. Trimbach, a/k/a Scott Trimbach,
Respondent/Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on the December 20, 2013 Recommendation of United
States Magistrate Judge Boyd N. Boland (ECF No. 16) recommending that this action be closed
administratively, as well as the October 25, 2014 Recommendation of Judge Boland (ECF No.
17) and the Motion for Default Judgment filed by Petitioner/Plaintiff Morgan Stanley & Co.,
LLC (“Morgan Stanley”) (ECF No. 13.).
Judge Boland first recommended that this matter be administratively closed due to
Respondent/Defendant Scott Allen Trimbach’s filing of a Notice of Bankruptcy. (ECF Nos. 16,
15.) Judge Boland’s second Recommendation, based on the same rationale, was that Morgan
Stanley’s Motion for Default Judgment be denied without prejudice. (ECF No. 17.)
Morgan Stanley did not timely object to Judge Boland’s first Recommendation that this
matter be administratively closed, but after Judge Boland issued a subsequent Recommendation
recommending that Morgan Stanley’s Motion for Default Judgment be denied without prejudice,
also due to Mr. Trimbach’s bankruptcy proceeding, Morgan Stanley did object. (ECF No. 18.)
On August 15, 2014, the bankruptcy court dismissed Mr. Trimbach’s bankruptcy petition. (ECF

No. 18-1.) Given that the bankruptcy case is no longer proceeding and thus this case is no longer
stayed, Morgan Stanley understandably does not wish the case to be administratively closed. In
light of the fact that this case was never administratively closed, Morgan Stanley now requests
that this Court rule on its Motion for Default Judgment (ECF No. 13).1 This Court agrees.
Default judgment may enter against a party who fails to appear or otherwise defend a
lawsuit. Fed. R. Civ. P. 55. “[D]efault judgment must normally be viewed as available only
when the adversary process has been halted because of an essentially unresponsive party. In that
instance, the diligent party must be protected lest he be faced with interminable delay and
continued uncertainty as to his rights. The default judgment remedy serves as such a protection.”
In re Rains, 946 F.2d 731, 732-33 (10th Cir. 1991) (internal citation omitted). “[A] party is not
entitled to a default judgment as of right; rather the entry of a default judgment is entrusted to the
sound judicial discretion of the court.” Greenwich Ins. Co. v. Daniel Law Firm, No. 07-cv-2445,
n, at *2 (D. Colo. Mar. 22, 2008) (internal citation omitted). “As a general matter, a corporation
or other business entity can only appear in court through an attorney and not through a nonattorney corporate officer appearing pro se.” Harrison v. Wahatoyas, L.L.C., 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.”).
This action was commenced by a Petition pursuant to the Federal Arbitration Act to
confirm an arbitration award. (ECF No. 1.) In 2006, Mr. Trimbach signed a Promissory Note
for a loan he received from Morgan Stanley in the amount of $125,000. (ECF No. 1-1.) The
Promissory Note contained an arbitration clause, and Morgan Stanley submitted the matter to
arbitration. On August 30, 2012, the Arbitrators issued an award against Mr. Trimach, awarding
1

Morgan Stanley entitles its Motion a “Motion for Entry of Judgment,” but the Court will refer to it as a Motion for
Default Judgment for clarity’s sake.

2