USA v. Olsen et al

Filing 36

AMENDED ORDER Granting Motion for Entry of Default Against Defendant Carl F. Olsen. Plaintiffs Motion for Entry of Default Against Defendant 33 is GRANTED. The Default Judgment 35 which was entered prematurely is VACATED, by Judge William J. Martinez on 08/21/2015. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-03302-WJM-KLM
UNITED STATES OF AMERICA,
Plaintiff,
v.
CARL F. OLSEN, and
EL PASO COUNTY, COLORADO,
Defendants.

AMENDED ORDER GRANTING MOTION FOR ENTRY OF DEFAULT
AGAINST DEFENDANT CARL F. OLSEN

In this action to enforce a federal tax lien, the United States of America
(“Plaintiff”) brings claims against Defendant Carl F. Olsen (“Defendant”) seeking to
foreclose on its lien for unpaid taxes, interest, and penalties. (ECF No. 1.) Before the
Court is Plaintiff’s Motion for Entry of Default Against Defendant Carl F. Olsen
(“Motion”). (ECF No. 33.) For the following reasons, the Court grants the Motion and
directs the Clerk to enter default against Defendant.
I. DISCUSSION
Default must enter against a party who fails to “plead or otherwise defend” a
lawsuit. Fed. R. Civ. P. 55(a). “[T]he ‘typical Rule 55 case is one in which a default has
entered because a defendant failed to file a timely answer.’” City of New York v.
Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir. 2011) (quoting Brock v. Unique
Racquetball & Health Clubs, Inc., 786 F.2d 61, 64 (2d Cir. 1986)) (brackets omitted).
However, Rule 55(a) also permits the entry of default where a party has failed to

“otherwise defend.” Entry of default is proper under such circumstances when a
defendant’s failure to respond “‘thwart[s] the ability of the Court to resolve the matter on
the merits.’” Mrs. Condies Salad Co., Inc. v. Colo. Blue Ribbon Foods, LLC, 858 F.
Supp. 2d 1212, 1218 (D. Colo. 2012) (quoting State Res. Corp. v. Sirios, 2011 WL
318754, at *2 (D. Colo. Jan. 28, 2011)).
Plaintiff filed its Complaint in this action on December 5, 2014. (ECF No. 1.) On
December 31, 2014, Defendant, proceeding pro se, filed a Motion to Dismiss under
Federal Rule of Civil Procedure 12. (ECF No. 6.) Plaintiff filed a Response in
opposition to the Motion to Dismiss (ECF No. 13), but Defendant filed no Reply. On
May 22, 2015, Magistrate Judge Kristen L. Mix entered a Recommendation to deny
Defendant’s Motion to Dismiss. (ECF No. 29.) Despite the advisement in the
Recommendation that objections were due within fourteen days of service of the
Recommendation, Defendant filed no such objection. (See id. at 7.) The Court adopted
the Recommendation on June 10, 2015, and denied Defendant’s Motion to Dismiss.
(ECF No. 30.) Federal Rule of Civil Procedure 12(a)(4)(A) provides that a defendant
must file a responsive pleading within fourteen days of receiving notice of the denial of a
Rule 12 motion to dismiss. Accordingly, Defendant’s responsive pleading was due on
June 27, 2015.1 No such pleading was filed.
On July 21, 2015, Plaintiff moved for a Clerk’s Entry of Default (ECF No. 31);
however, the Clerk entered a Note indicating that default would not be entered because
Defendant had participated in the case by filing the Motion to Dismiss. (ECF No. 32.)

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Pursuant to Rule 6(d), a party such as Defendant who is served by mail is provided an
additional three days after a filing deadline would otherwise expire.

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Accordingly, Plaintiff filed the instant Motion on July 28, 2015, seeking an order from
this Court directing the entry of default against Defendant. (ECF No. 33.)
The Court finds that Defendant has failed to participate in this case in any way
since he filed his Motion to Dismiss nearly eight months ago. Plaintiff notes that it
served Defendant with discovery requests in April and May 2015, to which he had 30
days to respond pursuant to Federal Rules of Civil Procedure 33, 34, and 36, and that
no response was received. (ECF No. 33-1 at 1–2.) Defendant also failed to respond to
either of two letters Plaintiff sent to him via e-mail and postal mail regarding its
discovery requests and attempts to take his deposition. (Id.) The Court notes that
Defendant has been served copies of each of its orders by mail, and that none of these
copies has been returned as undeliverable, nor has the Court received any notice of
change of address from Defendant.
The Court recognizes that, because Defendant is pro se, he may be unfamiliar
with court rules and procedures, and thus caution is warranted in entering default
against him. Nevertheless, a defendant’s “pro se status does not relieve him of the
obligation to comply with procedural rules.” Murray v. City of Tahlequah, 312 F.3d
1196, 1199 n.3 (10th Cir. 2002). As a result of Defendant’s repeated failure to comply
with his discovery obligations or to file any responsive pleading after the denial of his
Motion to Dismiss, the Court has been prevented from considering the merits of
Plaintiff’s claim. Accordingly, entry of default is appropriate. See Mrs. Condies Salad,
858 F. Supp. 2d at 1218.

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II. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Motion for Entry of Default Against Defendant Carl F. Olsen (ECF No.
33) is GRANTED;

2.

The Default Judgment [35] which was entered prematurely is VACATED; and

3.

The Clerk shall enter Defendant Carl F. Olsen’s default.
Dated this 21st day of August, 2015.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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