Free Motion for Entry of Default - District Court of Colorado - Colorado

Case 1:01-cv-02313-JLK

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Filed 11/20/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil action No. 1-01-cv-02313-JLK

GLN COMPLIANCE GROUP, INC., Plaintiff, v. JONATHAN ROSS Defendant. _____________________________________________________________________________ APPLICATION FOR ENTRY OF DEFAULT ______________________________________________________________________________ Plaintiff, GLN Compliance Group, Inc. ("GLN"), requests that the Clerk of this Court notice and enter default against Defendant Jonathan Ross ("Ross") pursuant to F.R.C.P. 55(a). As grounds, GLN states the following: Certificate of Compliance with D.C.Colo.L.R. 7.1A GLN's Counsel has conferred with opposing counsel about Ross's failure to file an Answer to GLN's First Amended Complaint by November 1, 2007, as Ordered by the Court on October 16, 2007. Despite Ross's failure to file an Answer, opposing counsel opposes the entry of default against Ross. Application for Entry of Default 1. GLN filed its original Verified Complaint in the Arapahoe County District Court

of Colorado on October 17, 2001. Ross's prior counsel then filed a Notice of Removal with this

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Court on November 30, 2001 (Doc. 1). 2. In lieu of filing an Answer to GLN's Complaint, Ross filed a Motion to Dismiss

for insufficient service of process pursuant to F.R.C.P. 12(b)(5) on May 20, 2002 (Doc. 16). After a hearing, the Court denied Ross's Motion to Dismiss on July 29, 2002 (Doc. 24). 3. On September 25, 2002, Ross filed a Waiver and Acceptance of Service with the

Court (Doc. 36). Shortly thereafter, this matter was stayed for several years pending the resolution of United Airlines's bankruptcy action. 4. On October 16, 2007, the Court Granted GLN's Renewed Motion to Lift Stay

(Doc. 87). In its Order, the Court concluded that "the time has come to lift, the stay, sever the claims and allow GLN to proceed, in Colorado, on its claims against Defendant Ross." (emphasis supplied) The Court further ordered that "GLN's claims against Ross shall proceed in this Court" and that "Ross shall have to November 1, 2007, in which to file his Answer to GLN's Complaint." (emphasis supplied) 5. Despite the Court's October 16 Order, Ross failed to Answer GLN's First

Amended Complaint by November 1. Instead, Ross filed another Motion to Dismiss pursuant to F.R.C.P. 12, and again asked the Court to transfer venue to another jurisdiction (this time, to the Southern District of New York) (Doc. 89). 6. The Court's Order requiring Ross to Answer GLN's Complaint is both

unambiguous and consistent with the procedural history of this case. Ross waived his right to file additional pre-answer motions asserting the defenses of improper venue pursuant to F.R.C.P. 12(b)(3) and failure to state a claim upon which relief may be granted pursuant to F.R.C.P. 2

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12(b)(6) by neglecting to raise those defenses in his first Motion to Dismiss pursuant to F.R.C.P. 12(b). See Stjernholm v. Peterson, 83 F.2d 347, 348 (10th Cir. 1996) ("A party waives the right to challenge venue if he fails to raise that defense either in his responsive pleading or in a motion to dismiss under Fed. R. Civ. P. 12(b)(3).") (citing F.R.C.P. 12(h)(1)); T&R Enter., Inc. v. Continental Grain Co., 613 F.2d 1272, 1277 (5th Cir. 1980) (Rules 12(g) and 12(h)(1) require that all defenses available under Rule 12 be asserted in a defendant's first Rule 12 motion or those defenses are waived). Additionally, Ross's request for transfer of venue pursuant to 28 U.S.C. § 1404(a) neither tolled the Court's deadline for filing an Answer nor constituted a responsive pleading. See Royal Ins. Co. v. Packaging Coordinators, Inc., 2000 U.S. Dist. Lexis 15471 at 6 (E.D. Pa.) (motion to transfer venue under 28 U.S.C. § 1404(a) does not toll deadline for filing answer); Durham v. Harvey, 1979 U.S. Dist. Lexis 12130 at 3 (N.D. Ill.) (motion to transfer venue under section 1404(a) does not constitute responsive pleading). Put simply, Ross had no basis for defying the Court's Order that he file his Answer by November 1, 2007. 8. Because Ross has failed to answer as provided for in the Federal Rules of Civil

Procedure and this Court's Order of October 16, 2007, the Clerk of this Court should enter Ross's default pursuant to F.R.C.P. 55(a). Upon the entry of default, GLN will then seek default judgment pursuant to the requirements set forth in F.R.C.P. 55(b). WHEREFORE, GLN asks the Clerk of this Court to enter Defendant Jonathan Ross's default pursuant to F.R.C.P. 55(a).

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Dated: November 20, 2007

s/ Daniel A. Wartell Elizabeth A. Starrs Daniel A. Wartell STARRS MIHM & CASCHETTE LLP 707 Seventeenth Street, Suite 2600 Denver, CO 80202 Telephone: 303-592-5900 Fax: 303-592-5910 [email protected] [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on November 20, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Mark T. Barnes, Esq. Brownstein Hyatt Farber Schreck 410 17th Street, Suite 2200 Denver, CO 80202-4437 Telephone: 303-223-1100 Fax: 303-223-1111 [email protected] Stephen D. Gurr, Esq. Kamlet Shepard & Reichert LLP 1515 Arapahoe St., Tower 1, Suite 1600 Denver, CO 80202 Telephone: 303-825-4200 Fax: 303-825-1185 [email protected] Micah E. Marcus, Esq. Kirkland & Ellis LLP 200 E. Randolph Drive Chicago, IL 60601 Telephone: 312-861-2165 Fax: 312-861-2200 [email protected] s/ Daniel A. Wartell Elizabeth A. Starrs Daniel A. Wartell STARRS MIHM & CASCHETTE LLP 707 Seventeenth Street, Suite 2600 Denver, CO 80202 Telephone: 303-592-5900 Fax: 303-592-5910 [email protected] [email protected]

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