Gentle Giant Moving Co., Inc. v. Gentle Giant Moving and Storage, Inc. et al

Filing 36

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Regarding Order to Show Cause 34 , by Magistrate Judge Michael J. Watanabe on 5/01/2018. RECOMMENDS that Judge Brimmer enter default against Defendants Gentle Giant Moving and Storage Inc. and Empier Moving and Storage Services Co. and allow Plaintiff to file a motion for default judgment against these two Defendants. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02762-PAB-MJW
GENTLE GIANT MOVING CO., INC.,
Plaintiff,
v.
GENTLE GIANT MOVING AND STORAGE INC.,
JOSE M. ESQUIVEL,
ITAMAR FRIEDMAN, SR., and
EMPIER MOVING AND STORAGE SERVICES CO.,
Defendants.
RECOMMENDATION REGARDING
ORDER TO SHOW CAUSE (Docket No. 34)
MICHAEL J. WATANABE
United States Magistrate Judge
This case is before the Court pursuant to an Order Referring Case to United
States Magistrate Judge entered by Judge Philip A. Brimmer on January 20, 2018
(Docket No. 14), the Court’s March 1, 2018 Minute Order (Docket No. 29), and the
Court’s April 16, 2018 Order to Show Cause (Docket No. 34). In the March 1, 2018
Minute Order, the Court granted a motion to withdraw as counsel filed by the attorneys
who were representing Defendants. The result was that the two individually named
Defendants were left to proceed pro se and the two entity Defendants were ordered to
retain counsel because, as the Minute Order explained, entities cannot proceed without
counsel. Specifically, the Court noted:
Defendants Gentle Giant Moving and Storage Inc. and Empier Moving and
Storage Services Co. cannot proceed without attorney representation.
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Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 556 (“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.”(10th Cir. 2001); see also Tal v. Hogan, 453 F.3d 1244, 1254 (10th
Cir. 2006) (collecting cases). Accordingly, it is hereby ORDERED that
Defendants Gentle Giant Moving and Storage Inc. and Empier Moving and
Storage Services Co. shall retain counsel who must file a notice of entry of
appearance on the docket on or before March 30, 2018, or be subject to
sanctions including, but not limited to, entry of default judgment.
(Docket No. 29 at 1-2) (emphasis in original). In the April 16, 2018 Order to Show
Cause (Docket No. 34), the Court noted:
Since issuance of the March 1, 2018 Minute Order, no attorney has
entered an appearance for Defendant Gentle Giant Moving and Storage
Inc. or Defendant Empier Moving and Storage Services Co. Plaintiff’s
claims against Defendants Gentle Giant Moving and Storage Inc. and
Empier Moving and Storage Services Co. cannot be litigated if they are
not represented by counsel.
(Docket No. 34 at 2).
After explaining the applicable rules, the Court
ORDERED that on May 1, 2018 at 10:30 a.m. in Courtroom A-502, Fifth
Floor, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado,
a Show Cause Hearing will be held during which Defendants Gentle Giant
Moving and Storage Inc. and Empier Moving and Storage Services Co.
shall show cause why default judgment should not be entered
against them pursuant to Fed. R. Civ. P. 16(f). In addition to a
recommendation that default judgment be entered against them, other
sanctions may be imposed, including but not limited to, Plaintiff’s attorney
fees and costs and a finding and order of contempt.
(Docket No. 34 at 3) (emphasis in original).
Defendants Gentle Giant Moving and Storage Inc. and Empier Moving and
Storage Services Co. failed to appear at the May 1, 2018 Show Cause Hearing as
ordered and counsel has not filed an entry of appearance on behalf of either of these
Defendants to date. As explained in the April 16, 2018 Order to Show Cause (Docket
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No. 34), Defendants Gentle Giant Moving and Storage Inc. and Empier Moving and
Storage Services Co. are subject to sanctions under Fed. R. Civ. P. 16(f), including
entry of default judgment and a finding of contempt of court. Accordingly, the Court
RECOMMENDS that Judge Brimmer enter default against Defendants Gentle Giant
Moving and Storage Inc. and Empier Moving and Storage Services Co. and allow
Plaintiff to file a motion for default judgment against these two Defendants.
Dated: May 1, 2018
Denver, Colorado

s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge

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