Ace Oilfield Rentals LLC v. Western Dakota and Fabrication LLC et al

Filing 67

ORDER dismissing Defendant Western Dakota and Fabrication,LLCs counterclaim. IT IS FURTHER ORDERED that the Clerk of Court enter default against DefendantWestern Dakota and Fabrication, LLC.. Signed by Honorable Timothy D. DeGiusti on 1/17/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

ACE OILFIELD RENTALS, LLC,

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Plaintiff,
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v.
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WESTERN DAKOTA AND FABRICATION, )
LLC, a South Dakota limited liability company, )
DOUG KERKVLIET, an individual, and
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TUCKER PANKOWSKI, an individual,
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Defendants.
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Case No. CIV-15-672-D

ORDER
By Order of the Court [Doc. No. 63], issued August 16, 2016, Defendant Western
Dakota and Fabrication, LLC (“Western Dakota”) was directed to show cause for its
noncompliance with a prior Order [Doc. No. 62] to secure new counsel. A review of the case
file reveals no response by Western Dakota, no entry of appearance by substitute counsel,
and no other filing on behalf of Western Dakota to date. Presently before the Court is
Plaintiff’s Motion for Entry of Judgment as to Western Dakota [Doc. No. 66].
Upon consideration of facts shown by the case record, the Court finds a willful failure
by Western Dakota to comply with the Court’s Orders to ensure legal representation of the
company in this case, and allow for the case to proceed.1 The continued non-compliance of

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A “willful failure” is “any intentional failure as distinguished from involuntary noncompliance.
No wrongful intent need be shown.” In re Standard Metals Corp., 817 F.2d 625, 628-29 (10th Cir. 1987)
(internal quotation omitted).

Western Dakota has frustrated the Court’s ability to manage its docket and to ensure that this
case can proceed in an orderly fashion in compliance with the Federal Rules of Civil
Procedure. The Court further finds the dismissal of Western Dakota’s counterclaim is an
appropriate sanction. See LaFleur v. Teen Help, 342 F.3d 1145, 1150 (10th Cir. 2003)
(affirming the dismissal of a complaint due to the plaintiff’s failure to obey an order to hire
resident counsel). As Western Dakota has been repeatedly unresponsive to the Court’s
direction, the Court finds than any lesser sanction would be ineffective.
Upon consideration of Plaintiff’s Motion, the Court hereby directs the Clerk of Court
to enter default against Western Dakota. The Court further directs that Western Dakota will
have 14 days from the date of the Clerk’s Entry of Default to comply with the Court’s
previous Orders to obtain counsel and to respond to Plaintiff’s Motion. Failure to obtain
substitute counsel and so respond shall result in the entry of a default judgment. See In re
Rains, 946 F.2d 731, 732-33 (10th Cir. 1991).
IT IS THEREFORE ORDERED that Defendant Western Dakota and Fabrication,
LLC’s counterclaim [Doc. No. 22] is DISMISSED WITHOUT PREJUDICE to refiling.
IT IS FURTHER ORDERED that the Clerk of Court enter default against Defendant
Western Dakota and Fabrication, LLC.

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IT IS SO ORDERED this 17th day of January, 2017.

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