Keywanfar v. Silverleaf Financial et al

Filing 36

MEMORANDUM DECISION AND ORDER granting 34 Motion for Default Judgment. Signed by Judge Ted Stewart on 4/3/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BENJAMIN KEYWANFAR, an individual,
MEMORANDUM DECISION AND
ORDER GRANTING DEFAULT
JUDGMENT

Plaintiff,
v.
SILVERLEAF FINANCIAL, a Utah limited
liability company, ACM SILVERLEAF III
B, a Florida limited liability company, D.
SHANE BALDWIN, an individual,

Case No. 2:12-CV-602 TS
District Judge Ted Stewart

Defendants.
This matter is before the Court on Plaintiff’s Motion for Default Judgment. 1 For the
reasons discussed below, the Court will grant Plaintiff’s Motion.
I. BACKGROUND
This action was filed in June 2012. Trial was set to begin on January 13, 2014. 2 On
January 6, 2014, Defendants did not appear at the final pretrial conference. On January 21,
2014, Plaintiff filed this Motion for Default Judgment, to which Defendants failed to respond.
On February 27, 2014, the Court entered an order to show cause, directing Defendants to show
cause in writing why they failed to appear at the pretrial conference and why judgment should
not be entered. 3 Defendants failed to respond. The Court now considers Plaintiff’s Motion for
Default Judgment.

1

Docket No. 34.

2

Docket No. 28.

3

Docket No. 35.

1

II. DISCUSSION
Plaintiff moves for default judgment as a result of Defendants’ failure to appear at the
final pretrial conference and failure to communicate with the Court. Rule 16(f) of the Federal
Rules of Civil Procedure provides that “[o]n motion or on its own, the court may issue any just
orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails
to appear at a scheduling or other pretrial conference.” 4 Rule 37 permits courts to issue “just
orders” including orders “rendering a default judgment against the disobedient party.” 5
In Ehrenhaus v. Reynolds, 6 the Tenth Circuit noted that “[b]efore choosing dismissal as a
just sanction, a court should ordinarily consider a number of factors.” 7 These factors include (1)
the degree of actual prejudice to the opposing party, (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 noncompliance, and (5) the
efficacy of lesser sanctions. 8 “Only when the aggravating factors outweigh the judicial system’s
strong predisposition to resolve cases on their merits is dismissal an appropriate sanction.” 9
While these factors do not constitute a rigid test, they do represent considerations courts should
evaluate on the record. 10

4

Fed. R. Civ. P. 16(f)(1).

5

Id. (b)(2)(A)(vi).

6

965 F.2d 916 (10th Cir. 1992).

7

Id. at 921.

8

Id.

9

Id. (quoting Meade v. Grubbs, 841 F.2d 1512, 1520 (10th Cir. 1988)).

10

Id.

2

First, Plaintiff has been prejudiced by Defendants’ failure to defend this action.
Defendants’ actions, including their failure to appear at the final pretrial conference, have
prejudiced the Plaintiff by causing delay and increasing attorneys’ fees. Without Defendants’
appearance and participation, Plaintiff has been unable to proceed with this litigation. As to the
second factor, for essentially the same reasons, the Court finds that Defendants’ have interfered
with the judicial process.
Third, the Court finds that Defendants are culpable. On February 27, 2014, the Court
ordered “Defendants [to] show cause in writing, within fourteen (14) days as to why they failed
to appear at the pretrial conference and why judgment should not be entered.” 11 Defendants
have not done so.
Fourth, the Court warned that sanctions would be imposed, including that judgment
would be entered if Defendants failed to show cause. The Court warned Defendants what was
required of them and the consequences, yet Defendants have taken no action to date. Finally, the
Court finds that lesser sanctions would not be adequate as Defendants have failed to participate
in this action and there is no indication that they intend to do so.
Considering these factors, the Court finds that dismissal and judgment in favor of
Plaintiff is appropriate.
III. CONCLUSION
It is therefore ORDERED that Plaintiff’s Motion for Default Judgment (Docket No. 34)
is GRANTED. The Clerk of this Court is directed to enter judgment in favor of Plaintiff and
11

Docket No. 35, at 2.

3

against Defendants on all claims and close this case forthwith. The Court will set this matter for
a hearing to determine damages by separate notice.
DATED this 3rd day of April, 2014.
BY THE COURT:

Ted Stewart
United States District Judge

4