Securities and Exchange Commission v. Earthly Mineral Solutions, Inc. et al

Filing 76

ORDER Granting 70 Motion for Entry of Clerks Default as to Earthly Mineral Solutions, Inc., Natural Minerals Processing Company. Denying as moot 62 Motion to Continue District Judge Hearing. Signed by Judge James C. Mahan on 7/15/2010. (Copies have been distributed pursuant to the NEF - SD)

Securities and Exchange Commission v. Earthly Mineral Solutions, Inc. et al

Doc. 76

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
James C. Mahan U.S. District Judge

SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. EARTHLY MINERAL SOLUTIONS, INC., et al., Defendants.

2:07-CV-1057 JCM (LRL)

ORDER Presently before the court is plaintiff Securities and Exchange Commission's (hereinafter "S.E.C.") motion for clerk's entry of default against defendant Earthly Mineral Solutions, Inc., and Natural Minerals Processing Company. (Doc. # 70). To date no opposition has been filed. Also before the court is defendants Roy Higgs and Frank Schwartz's joint motion to continue. (Doc. #62). To date, no opposition has been filed. A. Motion For Default

Federal Rule of Civil Procedure 16(f) provides that certain sanctions are available under Fed. R. Civ. P. 37(b)(2)(A), when a party fails to comply with a pre-trial order. Under Federal Rule of Civil Procedure 37(b)(2)(A), a court may strike a party's pleadings in whole or in part and enter default judgment against the party who has failed to comply. Defendants Earthly Mineral Solutions, Inc., and Natural Minerals Processing Company failed to comply with this court's order requiring defendants to obtain counsel. (Doc. # 39). Defendants

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have been previously advised by Magistrate Judge Leavitt that the law does not allow a corporation to appear in federal court unless it is represented by licensed counsel. Rowland v. California Men's Colony, 506 U.S. 194, 202 (1993). Default against a corporation, or dismissal of its claims, is a permissible sanction for its failure to comply with the requirement that it be represented by counsel. United States v. High Country Broadcasting Co., 3 F.3d 1244, 1245 (9th Cir. 1993). See also Employee Painters' Trust v. Ethan Enterprises, Inc., 480 F.3d 993, 998 (9th Cir. 2007); In re America West Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994); Salman v. Newell, 110 Nev. 1333 (1994). Having failed to obtain counsel, this court finds it appropriate to enter default against defendants Earthly Mineral Solutions, Inc., and Natural Minerals Processing Company, in accordance with Federal Rules of Civil Procedure 16(f), 37(b)(2)(A), and 55(a). B. Motion to Continue

Defendants Roy Higgs and Frank Schwartz's motion to continue (doc. #62) appears to be a request by the individual defendants to continue the scheduling dates for discovery and the submission of a joint pre-trial order. Magistrate Judge Leavitt has signed a revised scheduling order with a revised deadline of October 1, 2010 for the submission of a joint pretrial order. (Doc. # 66). Therefore, this court finds that the defendants' motion is moot. Accordingly, IT IS HEREBY ORDERED ADJUDGED AND DECREED that plaintiff's motion for entry of default (doc. # 70) is hereby GRANTED. IT IS FURTHER ORDERED that defendants' motion to continue (doc. # 62) is DENIED as moot. DATED July 15, 2010.

UNITED STATES DISTRICT JUDGE 26 27 28
James C. Mahan U.S. District Judge

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