United States District Court, D. Colorado
A. BRIMMER, United States District Judge.
matter is before the Court on the Renewed Motion for Entry of
Default and Default Judgment Against Head & Associates,
P.C. [Docket No. 69] filed by plaintiff SecurityNational
Mortgage Company (“SecurityNational”). This case
arises out of plaintiff's claim for legal malpractice.
The Court has jurisdiction pursuant to 28 U.S.C. § 1332.
filed this action on November 5, 2013, asserting claims for
professional negligence, breach of fiduciary duty, breach of
contract, and unjust enrichment. Docket No. 1. On December 3,
2013, plaintiff served the complaint on defendants via email.
Docket No. 15-3 at 2. The complaint was accompanied by
waivers of service, which state that defendants “must
file and serve an answer or a motion under Rule 12 within 60
days from December 3, 2013, the date when this request was
sent.” Docket Nos. 6 and 7 at 2. Defendant John Head
(“Mr. Head”) signed the waivers of service on
behalf of both defendants on December 12, 2013. Id.
Accordingly, responsive pleadings were due by February 3,
2014. See Fed. R. Civ. P. 6(a)(1) and
February 4, 2014, after no answer or Rule 12 motion had been
filed, plaintiff moved for the entry of default. Docket Nos.
9 and 12. The Clerk of Court entered default as to both
defendants. Docket Nos. 10 and 13. On February 12, 2014,
defendants moved to set aside the entry of default and filed
an answer to the complaint. Docket Nos. 15 and 16. On
September 15, 2014, the Court set aside the Clerk's entry
of default against defendants. Docket No. 35.
August 14, 2014, Mr. Head filed a motion to withdraw as
attorney for Head & Associates, P.C. (“Head &
Associates”) [Docket No. 27] and, on September 5, 2014,
the magistrate judge granted his motion. Docket No. 34. The
magistrate judge informed Head & Associates that as
“a corporation, partnership, or other legal entity, 
it may not appear without counsel admitted to the bar of this
court. Absent prompt appearance of substitute counsel,
pleadings and papers may be stricken, and default judgment or
other sanctions may be imposed against Head &
Associates.” Id. (citations omitted). On
August 26, 2015, the Court ordered that the Clerk of the
Court enter default as to Head & Associates. Docket No.
50. On July 8, 2016, plaintiff filed its renewed motion for
entry of default and entry of judgment against Head &
Associates. Docket No. 69. Defendant Head & Associates
has not filed a response.
order to obtain a judgment by default, a party must follow
the two-step process described in Federal Rule of Civil
Procedure 55. First, it must seek an entry of default from
the Clerk of the Court under Rule 55(a). Rule 55(a) provides
that “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise,
the clerk must enter the party's default.”
Fed.R.Civ.P. 55(a). Second, after default has been entered by
the Clerk, the party must seek default judgment according to
the strictures of Rule 55(b). See Williams v.
Smithson, 1995 WL 365988, at *1 (10th Cir. June 20,
1995) (citing Meehan v. Snow, 652 F.2d 274, 276 (2d
decision to enter default judgment is “committed to the
district court's sound discretion.” Olcott v.
Del. Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003)
(citation omitted). In exercising that discretion, the Court
considers that “[s]trong policies favor resolution of
disputes on their merits.” Ruplinger v. Rains,
946 F.2d 731, 732 (10th Cir. 1991) (quotation and citations
omitted). “The default judgment must normally be viewed
as available only when the adversary process has been halted
because of an essentially unresponsive party.”
Id. It serves to protect a plaintiff against
“interminable delay and continued uncertainty as to his
rights.” Id. at 733. The Court finds that Head
& Associates' failure to respond has thwarted the
ability of the Court to resolve the matter on the merits.
seeks entry of default judgment by the Clerk of the Court
pursuant to Federal Rule of Civil Procedure 55(b)(1), which
provides that, “[i]f the plaintiff's claim is for a
sum certain or a sum that can be made certain by computation,
the clerk - on the plaintiff's request, with an affidavit
showing the amount due - must enter judgment for that amount
and costs against a defendant who has been defaulted for not
appearing and who is neither a minor nor an incompetent
person.” Plaintiff has filed an affidavit showing the
sum certain due from the defaulted defendant. See
Docket No. 21-1. The entry of default judgment by the Clerk
of the Court pursuant to Federal Rule of Civil Procedure
55(b)(1) is appropriate without any additional action by the
Court. See Richfield Hosp., Inc. v. Shubh Hotels
Pittsburgh, LLC, No. 10-cv-00526-PAB-MJW, 2010 WL
5129532, at *2 (D. Colo. Dec. 9, 2010). Plaintiff states that
it suffered damages in the amount of $90, 769.33 on two
promissory notes: $3, 123.65 on the first note, and $87,
645.68 on the second note. Docket No. 21-1 at 3, ¶ 16;
4, ¶ 21.
is also seeking prejudgment interest at the rate of nine
percent per annum. Docket No. 69 at 3. Under Colorado law it
is the duty of the Court when entering judgment to add
prejudgment interest to the amount of damages. See
Colo. Rev. Stat. § 13-21-101. “Total prejudgment
interest is arrived at by first calculating simple interest
on the amount of the judgment from the date the
plaintiff's action accrued [here, the date
plaintiff's lawsuit was dismissed] until the day before
the action was filed.” Xiong v. Knight
Transportation, Inc., 77 F.Supp.3d 1016, 1025 (D. Colo.
2014) (citing Francis ex rel. Goodridge v. Dahl, 107
P.3d 1171, 1176 (Colo.App. 2005)). “This amount must
then be added to the amount of the judgment and used as the
initial base amount.” Id. “Finally, the
initial base amount is used to calculate compound interest
annually from the date the suit was filed until the date
judgment is entered.” Id.
claim accrued on September 4, 2008, see Docket No. 1
at 4, ¶ 20, and this suit was filed on November 5, 2013.
See Docket No. 1. Simple interest is calculated on
the amount of ...