Big O Tires, LLC v. Black Toad Enterprises, LLC et al

Filing 49

ORDER adopting 47 Report and Recommendations. The Clerk of the Court is directed to enter a default and Default judgment shall be entered against Defendant Black Toad Enterprises, LLC, by Judge Raymond P. Moore on 9/17/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-00824-RM-MJW
BIG O TIRES, LLC, a Nevada limited liability company,
Plaintiff,
v.
BLACK TOAD ENTERPRISES, LCC, an Arizona limited liability company,
DANIEL E. GROMAN,
KELLE C. GROMAN,
JAMES R. GROMAN, and
CECILIA GROMAN,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on the July 8, 2014 Recommendation of United States
Magistrate Judge Michael J. Watanabe (the “Recommendation”) (ECF No. 47). The
Recommendation advised the parties that specific written objections were due within fourteen
days after being served with a copy of the Recommendation. (Id. at 3-4.) Despite this
advisement, no objections to the Recommendation have to date been filed. This Court has
reviewed the Recommendation under the applicable de novo standard of Fed.R.Civ.P. 72(b).
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.”).
The Recommendation advises that both default and default judgment should enter against
Defendants. Despite Judge Watanabe’s reminder that Black Toad Enterprises, LLC (“Black
Toad”) cannot appear before this court without counsel and directing Defendants to retain
counsel (ECF No. 43 at 2), counsel has not entered an appearance. Judge Watanabe issued a
written Order to Show Cause (ECF No. 44) directing Black Toad to retain counsel but no
counsel appeared on behalf of Black Toad at the July 8, 2014 hearing on that order. Based on
the foregoing and a de novo review, this Court agrees with the Magistrate Judge that entry of
default and default judgment is appropriate. Accordingly, the Court ORDERS as follows:
(1) The Magistrate Judge’s Recommendation (ECF No. 47) is ADOPTED in its entirety;
(2) The Clerk of the Court is directed to enter a default;
(3) Default judgment shall be entered against Defendant Black Toad Enterprises, LLC.
DATED this 17th day of September, 2014.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge
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