Bendure et al v. Star Targets et al

Filing 93

FINDINGS AND RECOMMENDATIONS re 87 Second MOTION for Default Judgment as to Third-Party Defendants, Rolling Thunder Pyrotech, Corp. and Macraft USA filed by TLD Industries LLC. IT IS RECOMMENDED that TLDs renewed motion for default judgment against Third-Party Defendants Rolling Thunder and Macraft (ECF 87 ) be GRANTED. Judge Magistrate Judge Carolyn S Ostby termed case no longer referred. Signed by Magistrate Judge Carolyn S Ostby on 3/1/2016. (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CV 14-89-BLG-SPW-CSO

CASEY BENDURE,
v.

Plaintiff,

FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

STAR TARGETS, JUSTIN
HARDY, TLD INDUSTRIES
LLC, and CABELA’S
WHOLESALE, INC.,
Defendants.
TLD INDUSTRIES LLC,
v.

Third-Party Plaintiff,

ROLLING THUNDER
PYROTECHNIC, CORP. and
MACRAFT USA,
Third-Party Defendants.
Before the Court is Third-Party Plaintiff TLD Industries, LLC’s
(“TLD”) renewed motion for default judgment against Third-Party
Defendants Rolling Thunder Pyrotechnic Corp. (“Rolling Thunder”) and
Macraft USA (“Macraft”) under Fed. R. Civ. P. 55(b)(2). Renewed Mtn.

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for Default Judgment (ECF No. 87). 1 For the reasons that follow, the
Court recommends that TLD’s motion be granted.
I.

RELEVANT BACKGROUND
In Findings and Recommendation (“F&R”) issued September 3,

2015, the Court addressed TLD’s initial motion for default judgment
against Rolling Thunder and Macraft. Findings and Recommendation
of U.S. Magistrate Judge (ECF No. 67). The Court set out the relevant
background, including background concerning TLD’s service upon
Rolling Thunder and Macraft, and the Clerk of Court’s entry of default.
Id. at 2-5. The Court will not repeat that background here.
After applying the legal standard for default judgment, the Court:
(1) concluded that it has subject matter jurisdiction over this action
under 28 U.S.C. § 1332, id. at 7; (2) determined that it was unclear from
the record as it then existed whether it has personal jurisdiction over
TLD’s Third-Party Complaint against Rolling Thunder and Macraft, id.
at 8-10; and (3) recommended that the motion for default judgment “be

“ECF No.” refers to the document as numbered in the Court’s Electronic
Case Files. See The Bluebook, A Uniform System of Citation, § 10.8.3.
1

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denied with leave to renew after an appropriate record is made[,]” id. at
10-11. No party filed objections to the F&R.
On September 24, 2015, Judge Watters issued an Opinion and
Order adopting the F&R, in full, and denying TLD’s motion for default
judgment with leave to renew. ECF No. 68 at 1-3.
On November 13, 2015, TLD, with the Court’s leave, filed its
amended third-party complaint against Rolling Thunder and Macraft.
See Order Granting Mtn. for Leave to File (ECF No. 80); Am. ThirdParty Cmplt. (ECF No. 81). TLD alleges, inter alia, that Rolling
Thunder and Macraft “are responsible for the condition of the targets
when the targets were used by Plaintiff [Casey Bendure,]” who “alleges
that the condition of the targets caused him injury.” ECF No. 81 at ¶¶
7-8. TLD further alleges that under “[MCA] § 27-1-703 and other
statutory and common law of Montana, if TLD has liability to
[Bendure], then Macraft [ ] and Rolling Thunder [ ] are responsible for
some or all of that liability.” Id. at ¶ 15.
On January 4, 2016, TLD filed its renewed motion for default
judgment against Rolling Thunder and Macraft now before the Court.
ECF No. 87 at 1.
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II.

LEGAL STANDARD FOR DEFAULT JUDGMENT
As detailed in the F&R discussed above, the appropriate legal

standard for entry of a default judgment is as follows:
Rule 55(b) permits a court to enter default judgment following a
defendant’s default. Boards of Trustees v. Energy Management, 2012
WL 1657523, *1 (N.D. Cal. 2012) (citing Shanghai Automation
Instrument Co. v. Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001)).
Whether to enter a default judgment lies within the court’s discretion.
Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Pepsico, Inc. v.
Cal. Sec. Cans, 238 F.Supp.2d 1172, 1175 (C.D. Cal. 2002) (“A
defendant’s default does not automatically entitle the plaintiff to a
court-ordered judgment.”); Shanghai Automation Instrument Co., 194
F.Supp.2d at 999.
A district court has an affirmative duty to look into jurisdiction
over both the subject matter and the parties. “Before assessing the
merits of a default judgment, a court must confirm that it has subject
matter jurisdiction over the case and personal jurisdiction over the
parties, as well as ensure the adequacy of service on the defendant.”
Board of Trustees, 2012 WL 1657523, *2. When a court is considering
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whether to enter a default judgment, it may dismiss an action sua
sponte for lack of personal jurisdiction. A judgment entered without
subject matter and personal jurisdiction over the parties is void. In re
Tuli, 172 F.3d 707, 712 (9th Cir. 1999)).
If a court is satisfied that it has jurisdiction and that service on
defendants was adequate, the court next applies the following factors,
sometimes known as the Eitel factors, to determine whether it should
grant a default judgment:
(1) the possibility of prejudice to the plaintiff, (2) the merits of
plaintiff’s substantive claim, (3) the sufficiency of the
complaint, (4) the sum of money at stake in the action[,] (5) the
possibility of a dispute concerning material facts[,] (6) whether
the default was due to excusable neglect, and (7) the strong
policy underlying the Federal Rules of Civil Procedure favoring
decision on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986) (citation
omitted).
As part of this analysis, “the well-pleaded allegations of the
complaint relating to a defendant’s liability are taken as true.” Board
of Trustees, 2012 WL 1657523, *2 (quoting Pepsico, Inc., 238 F.Supp.2d
at 1175 (citing Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18
(9th Cir. 1987))). “Nevertheless, default does not compensate for
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essential facts not within the pleadings and those legally insufficient to
prove a claim.” Id. (citing Cripps v. Life Ins. Co. of N. Am., 980 F.2d
1261, 1267 (9th Cir. 1992)).
III. DISCUSSION
Applying the foregoing legal standards, the Court concludes that
TLD’s motion for entry of default judgment should be granted.
A.

Subject Matter Jurisdiction

The Court already has concluded that it has subject matter
jurisdiction over this action under 28 U.S.C. § 1332. ECF No. 67 at 7;
ECF No. 68 at 2.
B.

Personal Jurisdiction

The Court concludes that TLD’s amended third-party complaint
includes allegations sufficient to invoke this Court’s personal
jurisdiction over Rolling Thunder and Macraft. On a motion seeking
default judgment, “a plaintiff must make a prima facie showing of the
existence of personal jurisdiction.” Heidorn v. BDD Marketing &
Management Co., LLC, 2013 WL 6571629, *7 (N.D. Cal. 2013) (citing
DFSB Kollective Co. Ltd. v. Bourn, 897 F.Supp.2d 871, 885 (N.D. Cal.
2012)). “[T]o establish a prima facie case, plaintiffs are not limited to
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evidence that meets the standards of admissibility ... [but] [r]ather, they
may rest their argument on their pleadings, bolstered by such affidavits
and other written materials as they can otherwise obtain.” Id. (quoting
Mwani, et al. v. Bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005) and citing
Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d
1122, 1129 (9th Cir. 2003) (holding on a motion to dismiss that in order
to make a prima facie showing, the plaintiff must produce “facts that if
true would support jurisdiction over the defendant”). “In evaluating
whether a prima facie case is pled, only well pled facts of plaintiff’s
complaint, as distinguished from mere conclusory allegations, must be
accepted as true.’” Id. (quoting High Tech Pet Products, Inc. v. Juxin Pet
Product Co., Ltd., 2013 WL 1281619, at * (E.D. Cal., March 27, 2013)
(quoting Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995))).
“Federal courts ordinarily follow state law in determining the
bounds of their jurisdiction over persons.” Picot v. Weston, 780 F.3d
1206, 1211 (9th Cir. 2015) (quoting Daimler AG v. Bauman, ___ U.S. ___,
134 S.Ct. 746, 753, 187 L.Ed.2d 624 (2014)). Under Montana law,
[courts] first determine whether personal jurisdiction exists under
M. R. Civ. P. 4(b)(1). Personal jurisdiction may exist under Rule
4(b)(1) in one of two ways: a party may be found within the state
of Montana and subject to general jurisdiction, or the claim for
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relief may arise from any of the acts listed in Rule 4(b)(l)(A-G) and
create specific jurisdiction for the purpose of litigating that
particular claim. If personal jurisdiction exists under the first
step of the test, [a court] then determine[s] whether the exercise of
personal jurisdiction conforms with the traditional notions of fair
play and substantial justice embodied in the due process clause. If
personal jurisdiction does not exist under the first part of the test,
further analysis under the second part of the test is unnecessary.
Milky Whey, Inc. v. Dairy Partners, LLC, 342 P.3d 13, 17 (Mont.2015)
(internal quotations and citation marks omitted).
Here, TLD alleges in its amended third-party complaint that the
actions of Rolling Thunder and Macraft, directed at Montana, resulted
in the accrual of a tort action in Montana. TLD’s Supporting Br. (ECF
No. 88) at 9. Specifically, TLD alleges that: (1) TLD was approached by
Cabela’s Wholesale Inc. (“Cabela’s”) to provide Cabela’s with rim-fire
targets for sale in Cabela’s retail stores throughout the United States,
including Montana, ECF 81 at ¶ 4; (2) TLD entered into a business
relationship and supply chain with Rolling Thunder and Macraft
whereby Rolling Thunder would create the targets and ship them to
Macraft, which would then ship the targets to TLD, id. at ¶ 5; (3) TLD
would then sell the targets to Cabela’s, which would then sell them to
consumers, id. at ¶ 7; (4) Rolling Thunder and Macraft would capitalize
from this arrangement because Cabela’s retail stores are in various
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states, including Montana, id. at ¶ 6; and (5) because no entity,
including TLD, altered the targets before Cabela’s sold them to
consumers, Rolling Thunder and Macraft were responsible for the
targets’ condition when they were used by Plaintiff Casey Bendure
(“Bendure”) in this case, id. at ¶ 8; (6) based on Bendure’s allegation
that he was injured when a target unexpectedly exploded, Rolling
Thunder and Bendure engaged in acts that resulted in the accrual of a
tort action in Montana, id. at ¶ 10; and (7) Rolling Thunder and Macraft
purposely availed themselves of conducting business in Montana
through the above-described arrangement, id. at ¶ 11.
The Court concludes that the foregoing allegations are sufficient
to establish the Court’s personal jurisdiction over Rolling Thunder and
Macraft under Mont. R. Civ. P. 4(b)(1)(B) because their alleged actions
resulted in the accrual of a tort action within Montana. This Court has
recognized that when a manufacturing or design defect occurring
outside Montana causes an accident in Montana, with resulting
injuries, the tort accrued in Montana. Scanlan v. Norma Projektil
Fabrik, 345 F.Supp. 292, 293 (D. Mont.1972) (“It is now settled that a
tort action may accrue in a state wherein the injury occurs and
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consequently there is jurisdiction here if defendant’s acts satisfy the
minimum contacts requirement.”); see also Jackson v. Kroll, Pomerantz
and Cameron, 724 P.2d 717, 721 (1986) (“Under Montana law, the act
causing the injury ... need not occur in Montana as long as the tort
accrues here.”).
The next inquiry, then, is whether the Court’s exercise of personal
jurisdiction over Rolling Thunder and Macraft comports with due
process. Due process requires that nonresident defendants have certain
minimum contacts with the forum state such that the exercise of
personal jurisdiction does not offend traditional notions of fair play and
substantial justice. See International Shoe v. Washington, 326 U.S. 310,
316 (1945). The Court must determine whether such nonresident
defendants had “fair warning that a particular activity may subject
[them] to the jurisdiction of a foreign sovereign.” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (quoting Shaffer v. Heitner, 433 U.S. 186,
218 (1977) (Stevens, J., concurring in judgment)). The required “‘fair
warning’ is satisfied if the defendant has ‘purposefully directed’ his
activities at residents of the forum, and the litigation results from

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alleged injuries that ‘arise out of or relate to’ those activities.” Id.
(citations omitted).
Courts in the Ninth Circuit are to employ a three-part test in
determining whether Burger King’s requirements are met with respect
to a particular defendant:
(1) The nonresident defendant must do some act or consummate
some transaction with the forum or perform some act by which he
purposefully avails himself of the privilege of conducting activities
in the forum, thereby invoking the benefits and protections of its
laws[;] (2) [t]he claim must be one which arises out of or results
from the defendant’s forum-related activities[; and] (3) [e]xercise
of jurisdiction must be reasonable.
Omeluk v. Lansten Slip and Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir.
1995) (citing Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d
1280, 1287 (9th Cir.1977) and Roth v. Garcia Marquez, 942 F.2d 617,
620–21 (9th Cir.1991)).
The “purposeful availment,” “arising out of forum-related
activities” and “reasonableness” criteria provide the analytical
framework that courts in the Ninth Circuit employ when considering
whether the “constitutional touchstone” of “minimum contacts”
necessary for due process is satisfied. Omeluk, 52 F.3d at 270 (citing
Burger King, 471 U.S. at 474). “If any of the three requirements is not
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satisfied, jurisdiction in the forum would deprive the defendant of due
process of law.” Id.
In the case at hand, the Court concludes that all three criteria are
satisfied. First, TLD alleges that Rolling Thunder and Macraft
purposely availed themselves of the privilege of conducting business in
Montana, or at least purposely directed their activities at Montana by
capitalizing off of Cabela’s retail markets in Montana. Because Rolling
Thunder and Macraft, despite being properly served as discussed infra,
have not appeared, they have not disputed TLD’s allegations.
Second, TLD alleges that Rolling Thunder and Macraft were
involved in the creation of the exploding targets and, ultimately, in
shipping the targets, through TLD, to Cabela’s stores in Montana.
Again, Rolling Thunder and Macraft have not disputed TLD’s
allegations. Thus, the Court concludes that the underlying claim is one
that arises out of or results from their forum-related activities.
Third, because the first two criteria are satisfied, personal
jurisdiction is presumed reasonable unless Rolling Thunder and
Macraft present a compelling case to the contrary. Ochoa v. J.B.
Martin & Sons Farms, Inc., 287 F.3d 1182, 1192 (9th Cir. 2002). To
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assess the reasonableness of the exercise of personal jurisdiction, courts
in the Ninth Circuit are to apply the following seven factors: (1) the
extent of the defendant’s purposeful interjection into the forum state’s
affairs; (2) the burden on the defendant; (3) conflicts of law between the
forum and defendant’s home jurisdiction; (4) the forum’s interest in
adjudicating the dispute; (5) the most efficient judicial resolution of the
dispute; (6) the plaintiff’s interest in convenient and effective relief; and
(7) the existence of an alternative forum. Roth v. Garcia Marquez, 942
F.2d 617, 623 (9th Cir. 1991).
Because Rolling Thunder and Macraft have not appeared in this
action, they have presented no argument, let alone a compelling one, to
refute the reasonableness of the Court’s exercise of personal jurisdiction
over them. And, under the circumstances, application of the foregoing
seven factors further supports the reasonableness of the Court’s
exercise of personal jurisdiction over them. First, their presence in the
supply chain providing exploding targets to Cabela’s retail stores shows
at least a modest amount of purposeful interjection into Montana’s
affairs. Second, Rolling Thunder and Macraft have not asserted that
they would be burdened by the exercise of this Court’s personal
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jurisdiction over them. Third, they have not demonstrated a conflict
between their home jurisdictions’ laws and Montana’s laws. Fourth,
TLD has alleged that Montana has some interest in adjudicating this
dispute and Rolling Thunder and Macraft have not argued otherwise.
Fifth, this matter has been pending for more than 21 months, and it
would be more efficient to resolve the dispute in this forum than to
move part of it to another forum at this time. Sixth, it appears that it
would be more convenient for TLD to litigate this dispute and obtain
relief in this forum rather than proceed in multiple forums. Seventh,
Rolling Thunder and Macraft have not presented any alternative forum
for adjudication of this dispute.
Balancing the above factors, the Court concludes that Rolling
Thunder and Macraft have not presented a compelling case that the
exercise of personal jurisdiction over them in Montana is unreasonable.
Thus, the Court further concludes that it is appropriate to exercise
personal jurisdiction over Rolling Thunder and Macraft in this action.
C.

Service on Rolling Thunder and Macraft

The Court concludes that TLD properly served Rolling Thunder
and Macraft with the original third-party complaint. It is not disputed
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in the record that on August 28, 2014, Rolling Thunder’s registered
agent, Robert Flint, was personally served. ECF No. 67 at 3 (citing
ECF No. 11, 11-1; ECF No. 46 at ¶ 3).
And, TLD attempted to personally serve Macraft’s registered
agent. Id. at 4. TLD claims it was unsuccessful because the registered
agent actively evaded service attempts. Id. (citing ECF No. 46 at ¶¶ 57). TLD sought to effectuate service through the Montana Secretary of
State under the Federal and Montana Rules of Civil Procedure. Id.
(citing ECF No. 46 at ¶ 6). TLD did not publish the summons within
the rules’ time limits, and had the summons reissued on January 30,
2015. Id. (citing ECF No. 46 at ¶ 7). TLD then submitted affidavits,
deposits, and service documents to the Montana Secretary of State
under the Federal and Montana Rules of Civil Procedure. Id. (citing
ECF No. 46 at ¶ 8). It also published the summons in a local
newspaper. Id. (citing ECF No. 46 at ¶ 9). The final day of publication
was March 12, 2015. Id. (citing ECF No. 46 at ¶ 10).
Finally, neither Rolling Thunder nor Macraft has appeared, filed
an answer, otherwise responded to the third-party complaint, or
contacted TLD’s counsel, even though both have been served with the
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third-party complaint and summons. Id. (citing ECF No. 46 at ¶¶ 1113). On May 15, 2015, TLD moved for entry of default. Id. (citing ECF
Nos. 44-47). On May 18, 2015, the Clerk of Court entered default under
Fed. R. Civ. P. 55(a) against Rolling Thunder and Macraft. Id. (citing
ECF No. 50).
The Federal Rules of Civil Procedure do not require TLD to serve
Rolling Thunder and Macraft with the amended third-party complaint.
See Fed. R. Civ. P. 5(a)(2) (“No service is required on a party who is in
default for failing to appear. But a pleading that asserts a new claim
for relief against such a party must be served on that party under Rule
4.). Here, the amended third-party complaint does not assert a new
claim for relief against either Rolling Thunder or Macraft. Thus,
further service upon them is not required.
And, even though further service is not required under the federal
rules, TLD has presented evidence that it gave notice to Rolling
Thunder and Macraft under Fed. R. Civ. P. 5(b)(2)(C) by mailing the
amended third-party complaint to them at each party’s last known
address on December 4, 2015. See Affidavit of Paul C. Collins (ECF No.
88-1) at ¶¶ 12 and 13.
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The Court’s conclusion that TLD properly served Rolling Thunder
and Macraft is not altered by Bendure’s argument that service was
improper. ECF No. 90 at 3-8. Setting aside the issue of whether
Bendure has standing to oppose TLD’s motion for default judgment
against third-party defendants Rolling Thunder and Macraft, the Court
concludes that service was proper.
First, TLD’s service upon Rolling Thunder after it had been
administratively dissolved did not render such service improper under
either Montana law or the law of Wisconsin, where Rolling Thunder
was incorporated. See MCA § 35-1-935(2)(e) (“Dissolution of a
corporation does not . . . prevent commencement of a proceeding by or
against the corporation in its corporate name[.]”); Wisc. Stat. Ann.
180.1405(2)(e) (“Dissolution of a corporation does not do any of the
following: . . . Prevent commencement of a civil, criminal,
administrative or investigatory proceeding by or against the corporation
in its corporate name.”). And, it is undisputed that TLD served Rolling
Thunder’s last known registered agent. Thus, Bendure’s argument that
service was defective is unpersuasive.

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Second, TLD’s service upon Macraft was proper under Montana
law, and Bendure’s argument that such service was defective is
unpersuasive. Bendure’s argument that TLD should have served
Macraft under Mont. R. Civ. P. 4(o)(1) and (3)(b) is incorrect. As TLD
notes, it served Macraft under Rule 4(j)(8)(B), which allows service by
publication when a corporation’s officers or directors cannot be found in
Montana. And, as occurred here, when the person to be served is not
located or served, “service by publication must also be made as provided
in Rules 4(c)(2)(D) and 4(o)(4).” Mont. R. Civ. P. 4(j)(8)(B). It is
undisputed that TLD complied with the requirements of these two
rules. The additional requirements urged by Bendure are not
implicated under the circumstances present here nor under the
applicable rules.
Based on the foregoing, the Court concludes that TLD properly
served Rolling Thunder and Macraft.
D.

Default Judgment

Having concluded that it has jurisdiction and that service on
Rolling Thunder and Macraft was adequate, the Court turns next to the

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motion for default judgment and addresses the Eitel factors. As noted,
the factors are as follows:
(1) the possibility of prejudice to the plaintiff, (2) the merits of
plaintiff’s substantive claim, (3) the sufficiency of the
complaint, (4) the sum of money at stake in the action[,] (5) the
possibility of a dispute concerning material facts[,] (6) whether
the default was due to excusable neglect, and (7) the strong
policy underlying the Federal Rules of Civil Procedure favoring
decision on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986) (citation
omitted).
Consideration of the factors leads the Court to conclude that they
weigh in favor of granting TLD’s motion for default judgment. It is
presumed, in the absence of any argument or evidence to the contrary,
that the failure of Rolling Thunder and Macraft to appear and answer
the third-party complaint prejudices TLD’s ability to promptly obtain
justice and receive effective relief. As discussed above, TLD’s unrefuted
allegations contained in the amended third-party complaint render the
pleading sufficient and serve to establish the merits of TLD’s claim
against Rolling Thunder and Macraft. Thus, the first, second, and third
Eitel factors weigh in favor of default judgment.

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The amount of money at stake has not been determined at this
juncture in the proceedings because liability and damages
determinations in the first-party action have yet to be adjudicated.
And, TLD has presented no information about the possibility of a
dispute concerning material facts. Thus, the fourth and fifth Eitel
factors are neutral.
There is no indication that default was due to excusable neglect.
The record indicates that Rolling Thunder’s registered agent, Robert
Flint, was personally served on August 28, 2014, and that he died about
three months later. ECF No. 90 at 4 (citing ECF No. 51 at 3). But no
evidence indicates that Mr. Flint’s death excused Rolling Thunder’s
default. And there is no evidence of any excusable neglect respecting
Macraft’s default. Thus, the sixth Eitel factor weighs in favor of default
judgment.
Finally, respecting the seventh Eitel factor – the strong policy
favoring decisions on the merits – “[c]ases should be decided upon the
merits whenever reasonably possible.” Pepsico, 238 F.Supp.2d at 1177
(quoting Eitel, 782 F.2d at 1472). But “the mere existence of Fed. R.
Civ. P. 55(b) indicates that ‘this preference, standing alone, is not
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dispositive.” Id. (quoting Kloepping v. Fireman’s Fund, 1996 WL 75314,
at *3 (N.D. Cal., Feb. 13, 1996)). And a defendant’s failure to answer or
otherwise appear “makes a decision on the merits impractical, if not
impossible.” Id. Therefore, “the preference to decide cases on the
merits does not preclude a court from granting default judgment.” Id.
(quoting Kloepping, supra).
For the foregoing reasons, and considering the facts in the
aggregate, the Court concludes that the Eitel factors weigh in favor of
entry of default judgment. Thus, TLD’s motion for default judgment
against Rolling Thunder and Macraft should be granted.
In reaching the foregoing conclusions, the Court notes that it is
not persuaded by Bendure’s argument that default judgment in TLD’s
favor against Rolling Thunder and Macraft will be prejudicial to him “in
his ability to show TLD’s true role in this action.” ECF No. 90 at 10.
Again, without addressing whether Bendure has standing to contest
TLD’s motion, the Court concludes that he will suffer no unfair
prejudice if the motion is granted.
As TLD concedes in its reply brief, even if the Court enters the
requested default judgment, “the jury is going to have to compare fault
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among the parties on the negligence claim . . . and if [Bendure] wins
that claim, he will be able to collect damages directly from Defendants[,
who may then] seek reimbursement from the upstream product
suppliers. Nothing about that diminishes [Bendure’s] claim in any way
– only whether Defendants are entitled to reimbursement.” ECF No. 91
at 5 (citing Poulsen v. Treasure State Industries, Inc., 626 P.2d 822, 829
(Mont. 1981)); see also State Farm Fire and Cas. Co. v. Bush Hog, LLC,
219 P.3d 1249, 153 (Mont. 2009) (“The purpose of upstream indemnity
is to allow a person or entity downstream on the chain of distribution to
recover for sums paid to a third party whose injuries were caused by a
defective product, thereby placing ultimate responsibility for the defect
on the manufacturer.”). Thus, Bendure will suffer no prejudice if the
Court grants TLD’s motion for default judgment.
IV.

CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that TLD’s

renewed motion for default judgment against Third-Party Defendants
Rolling Thunder and Macraft (ECF 87) be GRANTED.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendation of the United States
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Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendations must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived.
DATED this 1st day of March, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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