Gentry, et al v. National Multi List Service, Inc., et al

Filing 52

ORDER denying 50 Motion for Summary Judgment for Breach of Settlement Agreement Claim or, in the Alternative, Default Judgment. ORDERED that plaintiffs Susan Gentry and Lisa Luceros First Amended Complaint 41 is STRICKEN for failure to comply with the requirements of Fed. R. Civ. P. 15(a). ORDERED that, no later than 5:00 p.m. on September 23, 2015, plaintiffs may seek leave from the Court to file an amended complaint, by Judge Philip A. Brimmer on 9/9/2015.(agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00858-PAB-KMT
SUSAN GENTRY and
LISA LUCERO, on behalf of themselves and others similarly situated,
Plaintiffs,
v.
NATIONAL MULTI LIST SERVICE INC.,
JAMES JONES, and
JIM BRAND,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Summary Judgment for Breach
of Settlement Agreement Claim or, in the Alternative, Default Judgment [Docket No. 50]
filed by plaintiffs Susan Gentry and Lisa Lucero. Plaintiffs bring this putative collective
action on behalf of all current and former hourly employees of defendants who worked
in the offices of defendant National Multi List Service Inc. in 2013 and 2014. See
Docket No. 41 at 4, ¶ 19.
Plaintiffs filed this suit on March 24, 2014. See Docket No. 1. Plaintiffs brought
claims for failure to pay minimum wage in violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., willful filing of fraudulent tax returns in violation of 26
U.S.C. § 7434, willful withholding of wages in violation of Colo. Rev. Stat. §§ 8-4-101 et
seq., and breach of contract. See id. The United States Marshals Service effected
service on defendants on April 4, 2014. See Docket Nos. 15-17.

According to the instant motion, instead of participating in this litigation,
defendants “immediately began settlement negotiations.” Docket No. 50 at 1. On May
21, 2014, plaintiffs moved to stay this action pending completion of a settlement
agreement. Docket No. 22. Magistrate Judge Tafoya granted plaintiffs’ motion in part
and instructed the parties to file dismissal papers no later than August 15, 2014.
Docket No. 24. According to plaintiffs, they entered into a settlement agreement with
defendants on May 9, 2014 that required defendants to pay plaintiffs a total of $8,000.
Docket No. 50 at 2, ¶¶ 1-2. The settlement agreement provides that, in the event of a
breach by any defendant, plaintiffs shall be entitled to pursue their original claims and to
enforce the settlement agreement. Docket No. 50-1 at 4. Plaintiffs represent that the
due dates for the payments have passed and no defendants have made any of the
payments required by the settlement agreement. Docket No. 50 at 2, ¶ 3.
On June 4, 2014 and June 11, 2014, plaintif fs filed motions to lift the stay and
enforce the settlement agreement. See Docket Nos. 26, 32. The magistrate judge
denied each motion without prejudice for failure to comply with D.C.COLO.LCivR 7.1.
See Docket Nos. 30, 36. On July 8, 2014, plaintiffs filed a third motion to enforce the
settlement agreement. See Docket No. 38. The magistrate judge again denied
plaintiffs’ motion and noted that the appropriate course of action under the
circumstances would be for plaintiffs to seek an entry of default and then default
judgment against defendants. Docket No. 40 at 2-3. The magistrate judge’s denial was
without prejudice to plaintiffs’ filing a motion for default and a motion for default
judgment no later than October 1, 2014. Id. at 3.
On September 9, 2014, plaintiffs filed an amended complaint (the “amended
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complaint”). See Docket No. 41. Plaintiffs did not seek leave to file the amended
complaint, which repeats the claims plaintiffs asserted against defendants in their
original complaint and adds a claim for breach of contract due to defendants’ alleged
breach of the settlement agreement. See id. at 8-9, ¶¶ 52-57. On October 1, 2014,
plaintiffs moved to vacate the magistrate judge’s October 1, 2014 deadline for seeking
entry of default on the grounds that plaintiffs were still seeking to serve the amended
complaint on defendants. See Docket No. 47. The magistrate judge granted plaintiffs’
motion and vacated the deadline. See Docket No. 49. The amended complaint was
served on defendants Jones and National Multi List Service, Inc. on September 30,
2014, see Docket No. 50-5 at 1, 50-7 at 1, and on def endant Brand on October 3, 2014.
Docket No. 50-6 at 1. To date, no defendant has answered the amended complaint or
otherwise appeared to defend this action. Plaintiffs now move for summary judgment
or, in the alternative, default judgment against defendants on plaintiffs’ breach of
contract claim.
Plaintiffs’ motion is problematic on several levels. First, plaintiffs filed their
amended complaint without having sought leave to do so. Federal Rule of Civil
Procedure 15(a) contemplates two circumstances where a party can amend its pleading
as a matter of course: within 21 days after serving the pleading (Fed. R. Civ. P.
15(a)(1)(A)) or, if the pleading is one to which a responsive pleading is required, “21
days after service of a responsive pleading or 21 days after service of a motion under
Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(B). In all other
cases, a complaint may only be amended with the opposing party’s written consent or
with leave from the Court. Fed. R. Civ. P. 15(a)(2).
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Second, even if the Court were to excuse plaintiffs’ failure to seek leave to
amend, plaintiffs’ motion for summary judgment would nonetheless be procedurally
improper. A party’s recourse when a defendant fails to appear to defend an action is
the default judgment process provided for in Fed. R. Civ. P. 55, not a motion for
summary judgment pursuant to Fed. R. Civ. P. 56. Cf. Ryeco, Inc. v. Garden State
Produce Co., 2009 WL 6374726, at *1 (D.N.J. Aug. 12, 2009), disapproved in later
proceedings on other grounds by 2010 WL 1660318 (D.N.J. Apr. 22, 2010) (denying
summary judgment sought against a party that had not appeared where the moving
party had not sought entry of default).
Third, plaintiffs’ alternative request for default judgment is procedurally improper
because plaintiffs have not moved for entry of default. In order to obtain a judgment by
default, a party must follow the two-step 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), which provides that, “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party’s default.” Second, after
default has been entered by the Clerk of the Court, the party must seek default
judgment according to the strictures of Rule 55(b). See Williams v. Smithson, 1995 WL
365988, at *1 (10th Cir. June 20, 1995) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d
Cir. 1981)) (unpublished); see also Cincinnati Ins. Co. v. Prof’l Data Servs., Inc., 2002
WL 923930, at *1 (D. Kan. Apr. 18, 2002) (while entry of default “is merely a procedural
step in the process toward obtaining a default judgment, in this case it has not yet

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occurred. Instead, plaintiff skipped directly to the second step of the process and
moved for a default judgment. Only after both steps occur can the court enter a def ault
judgment”). Because plaintiffs have not obtained entry of default, the Court cannot
enter default judgment.
The Court will strike the improperly-filed amended complaint. Plaintiffs may file a
motion to amend the complaint that complies with the procedural requirements of Rule
15(a) of the Federal Rules of Civil Procedure. Plaintiffs shall explain how, if defendants
have not responded to the original complaint or the improperly-filed, but served,
amended complaint, the addition of the breach of contract claim will affect plaintiffs’
recovery on default judgment.
Accordingly, it is
ORDERED that plaintiffs Susan Gentry and Lisa Lucero’s Motion for Summary
Judgment for Breach of Settlement Agreement Claim or, in the Alternative, Default
Judgment [Docket No. 50] is DENIED. It is further
ORDERED that plaintiffs Susan Gentry and Lisa Lucero’s First Amended
Complaint [Docket No. 41] is STRICKEN for failure to comply with the requirements of
Fed. R. Civ. P. 15(a). It is further
ORDERED that, no later than 5:00 p.m. on September 23, 2015, plaintiffs may
seek leave from the Court to file an amended complaint.

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DATED September 9, 2015.
BY THE COURT:

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

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