United States of America v. Parry Farms et al

Filing 14

MEMORANDUM DECISION and Order-denying 9 Motion for Default Judgment against Defendant Parry Farm without prejudice. Signed by Judge Clark Waddoups on 2/6/12. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

UNITED STATES OF AMERICA,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:11-cv-0831 CW

PARRY FARMS, LLC and MICHAEL
SORENSON,

Judge Clark Waddoups

Defendants.

Before the court is Plaintiff’s motion for default judgment against Defendant Parry
Farms, LLC (“Parry Farms”). (Dkt. No. 9.) For the reasons stated below, this court DENIES
Plaintiff’s motion without prejudice.
BACKGROUND
Plaintiffs filed a complaint against Defendants Parry Farms, LLC and Michael Sorenson
on September 13, 2011, seeking a judgment for an administrative civil penalty imposed by the
Environmental Protection Agency (“EPA”) against Parry Farms. The complaint also alleged that
Mr. Sorenson was the alter ego of Parry Farms and should be held jointly and severally liable for
the civil penalty.
Both defendants were properly served with the complaint by the U.S. Marshalls. On
October 19, 2011, Mr. Sorenson filed a pro se answer on his own behalf. Parry Farms, however,

has failed to make a timely response.1 Pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure, the Clerk of the Court entered a default certificate against Parry Farms on November
15, 2011. Plaintiff now seeks a default judgment against Parry Farms, in the amount of the civil
penalty.
ANALYSIS
When action is brought against more than one defendant, Rule 54(b) of the Federal Rules
of Civil Procedure only permits the entry of a final judgment against fewer than all the
defendants upon an express determination that there is “no just reason for delay.” Fed. R. Civ. P.
54(b). In the Tenth Circuit, such a determination cannot be made where the entry of a default
judgment against one defendant creates a risk of an inconsistent judgment against the remaining
defendants. See Hunt v. Inter-globe Energy, Inc., 770 F.2d 145 (10th Cir. 1985) (citing From v.
De La Vega, 82 U.S. (15 Wall.) 552 (1872)). “[W]hen one of several defendants who is alleged
to be jointly liable defaults, judgment should not be entered against him until the matter has been
adjudicated with regard to all defendants, or all defendants have defaulted.” Hunt, 770 F.2d at
147. “[J]ust as consistent verdict determinations are essential among joint tortfeasors, consistent
damage awards on the same claim are essential among joint and several tortfeasors.” Id. at 148.
The same principle applies where multiple defendants have closely related defenses. See Wilcox
v. Raintree Inns of Am., No. 94-1050, 1996 U.S. App. Lexis 1501, at *7-8 (10th Cir. Feb. 2,

1

While Mr. Sorenson’s pro se answer appears to have responded to claims against Parry
Farms, as well as to claims against himself personally, the rules of this court require that corporations
be “represented by an attorney that is admitted to practice in this court.” DUCiv.R 83-1.3(c).
Because Mr. Sorenson is not an attorney admitted to this court, he cannot represent Parry Farms in
this matter.
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1996) (unpublished) (“The Frow rule is also applicable in situations where multiple defendants
have closely related defenses.”).
If Plaintiff were to succeed on its claims against both Mr. Sorenson and Parry Farms, the
defendants would be held jointly and severally liable for the civil penalty. See Complaint, 7
(Dkt. No. 2.) Furthermore, Mr. Sorenson’s defense, while not identical, is closely related to
Parry Farms’. Plaintiff’s alter ego theory is dependant on a finding that Parry Farms is liable for
the civil penalty imposed against it. Mr. Sorenson’s defense will likely mirror any defense Parry
Farm’s might have had against the underlying claim. Were the court to enter a default judgment
against Parry Farms at this early stage, before the merits of the case have been determined, there
would be a real risk of inconsistent judgments being imposed against Mr. Sorenson and Parry
Farms. Such a risk prevents the court from making the Rule 54(b) determination that there is no
just cause for delay. Therefore, the court cannot enter a default judgment against Parry Farms at
this time.
CONCLUSION
For the reasons stated above, the court hereby DENIES Plaintiff’s motion for default
judgment against Defendant Parry Farms without prejudice.
DATED this 6th day of February, 2012.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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