Russell v. Canyon View Title Insurance Agency
Filing
42
MEMORANDUM DECISION granting 39 Motion for Entry of Judgment ; that within 21 days of the entry of this Order, Plaintiff shall submit a notice of its calculation of the prejudgment interest. If there is a contract or statute providing for an award of attorney fees, Plaintiff shall submit such information with its Notice. Signed by Judge Ted Stewart on 05/03/2011. (asp)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
CHRISTOPHER A. RUSSELL,
Plaintiff,
MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFF’S
MOTION FOR JUDGMENT
vs.
CANYON VIEW TITLE INSURANCE
AGENCY, INC.,
Case No. 2:08-CV-808 TS
Defendant.
This case has been stalled for several years due to Defendant’s failure to cooperate
by obtaining counsel. As a result, Plaintiff moves for entry of a default judgment as a
sanction.
On January 27, 2010, the Court entered an Order that Defendant comply with the
requirement that it obtain new counsel or face sanctions up to and including entry of
judgment.1 In that Order, the Court explained that Defendant was not eligible to proceed
pro se because it is a corporation.2 On February 11, 2010, the Court again ordered that
1
Docket No. 25.
2
Id. at 2.
1
Defendant obtain counsel within 21 days. The Court stated:
Plaintiff has suffered substantial prejudice including incurring additional
attorney fees as a result of the repeated delay caused by Defendant’s failure
to appear and defend this case. The delay has also resulted in complete
interference with the judicial process. Despite the diligent efforts of Plaintiff,
and entry of two scheduling orders by the Magistrate Judge, this case has
not progressed to discovery in the two years it has been pending. The prior
warnings have not been effective because discovery has not been able to
proceed and Defendant is again effectively without counsel. Defendant is
warned that the Court is seriously considering entry of judgment against
Defendant as a sanction for its repeated and protracted failure to defend this
case.3
The time for Defendant to obtain counsel expired on December 23, 2010.
Defendant has failed to obtain counsel. “A district court undoubtedly has discretion to
sanction a party for failing to prosecute or defend a case, or for failing to comply with local
or federal procedural rules.”4 The case Ehrenhaus v. Reynolds5 sets forth the factors to
be considered before imposing dispositive sanctions such as dismissal against a litigant:
While recognizing that there is no rigid test for determining when such a
sanction is appropriate, we have suggested that a district court ought to
evaluate five factors before imposing a dismissal sanction: (1) the degree of
actual prejudice to the defendant; (2) the amount of interference with the
judicial process; (3) the culpability of the litigant; (4) whether the court
warned the party in advance that dismissal of the action would be a likely
sanction for non-compliance; and (5) the efficacy of lesser sanctions.6
The Court finds that the Ehrenhaus factors are equally applicable to a request for
3
Id. at 2 (footnote omitted).
4
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002).
5
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).
6
Garcia v. Berkshire Life Ins. Co. of America, 569 F.3d 1174, 1179 (10th Cir.
2009) (citing Ehrenhaus, 965 F.2d at 920-21).
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entry of judgment as a sanction. However, the Court is mindful that such dispositive
sanctions should be “used as a weapon of last, rather than first, resort.”7
In the present case, the Court has previously found that Plaintiff has suffered
substantial prejudice. The Court further finds that such prejudice is increased by the latest
failure which has resulted in further and substantial prejudicial delay. As the Court
previously found, the repeated delay caused by Defendant’s failure to defend has resulted
in complete interference with the judicial process. Defendant has filed nothing to show
that the missed deadline and failure to comply was anything but willful. Considering the
entire history of the case, the Court finds that Defendant’s failure is willful. In its December
2, 2010 Order, the Court warned Defendant in advance that entry of judgment would be
the likely sanction for noncompliance. The record reveals that lesser sanctions have not
been effective. Defendant has been repeatedly warned and given repeated deadlines for
obtaining counsel, but has repeatedly failed to defend this case. Thus, the Court finds that
lesser sanction would be entirely ineffective. Accordingly, the Court finds and concludes
that judgment should be entered against Defendant. The Complaint sets forth a claim for
a sum certain and for prejudgment interest that can be made certain by calculation. It is
therefore
ORDERED that Plaintiff’s Renewed Motion for Entry of Judgment (Docket No. 39)
is GRANTED. It is further
ORDERED that judgment shall be entered in favor of Plaintiff and against Defendant
7
Id. (quoting Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir.
2005) and Ehrenhaus, 965 F.2d at 920)).
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in the principal amount of $1,903,333.99, plus prejudgment interest and fees. It is further
ORDERED that within 21 days of the entry of this Order, Plaintiff shall submit a
notice of its calculation of the prejudgment interest. If there is a contract or statute
providing for an award of attorney fees, Plaintiff shall submit such information with its
Notice.
DATED May 3, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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