United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter before the Court is plaintiff's Unopposed Motion
to Set Aside Default Judgment Against Head & Associates,
P.C. and Dismiss Case [Docket No. 96].
September 5, 2014, Mr. Head withdrew as counsel for Head
& Associates, P.C. (“Head & Associates”)
because his law license had been suspended. Docket Nos. 27,
34. As the magistrate judge noted in granting the motion to
withdraw, Head & Associates is unable to appear in this
matter without counsel admitted to the bar of this court.
Docket No. 34 at 1. No attorney ever entered an appearance on
behalf of Head & Associates. On October 1, 2014,
plaintiff moved for default judgment as to defendant Head
& Associates. Docket No. 38. On August 26, 2015, the
Court granted plaintiff's motion to the extent it sought
entry of default, but denied plaintiff's request for
default judgment without prejudice. Docket No. 50. On August
27, 2015, the Clerk of the Court entered default as to
defendant Head & Associates. Docket No. 51. On July 8,
2016, plaintiff filed a renewed motion for default judgment
against Head & Associates. Docket No. 69. On December 29,
2016, after reviewing the relevant factors under Fed.R. Civ.
P. 55(b)(1), the Court entered default judgment against Head
& Associates. Docket No. 78 at 6.
February 15, 2017, plaintiff submitted a stipulation of
settlement, which, among other things, stated that plaintiff
“stipulates that all interlocutory orders, including a
default judgment, shall be vacated and that the within action
be dismissed with prejudice.” Docket No. 89 at 1. On
February 16, 2017, the Court denied the portion of
plaintiff's stipulation requesting that the Court vacate
interlocutory orders, stating:
The parties have no authority to vacate orders entered in
this case. Moreover, even if the parties request that the
Court vacate an order as part of a settlement, absent
extraordinary circumstances, the Court will refuse to do so.
No. 90 at 1 (citing Clarke v. Nat'l Payment Relief,
LLC, No. 14-cv-01538-PAB-CBS, 2016 WL 540976, at *1 (D.
Colo. Feb. 11, 2016)). On February 22, 2017, plaintiff filed
a stipulated motion to dismiss defendant John Head, Docket
No. 93, which the Court granted. Docket No. 94.
March 10, 2017, plaintiff filed the instant motion, Docket
No. 96, requesting that the Court set aside the default
judgment, Docket No. 78, entered against defendant Head &
is a public policy in favor of the settlement of disputes and
 courts will honor this policy by facilitating settlement
where appropriate.” City of Aurora, Colo. v. PS
Sys., Inc., No. 07-cv-02371-PAB-BNB, 2010 WL 2670819, at
*1 (D. Colo. July 2, 2010). However, vacatur works to
“erase” a decision made, and hence, to attempt to
limit its subsequent power. See In re Memorial Hosp. of
Iowa Cty., Inc., 862 F.2d 1299, 1300 (7th Cir. 1988)
(“History cannot be rewritten.”); see also
Benavides v. Jackson Nat'l Life Ins. Co.,
820 F.Supp. 1284, 1289 (D. Colo. 1993) (“Vacatur allows
[parties] to control the direction and content of the
jurisprudence-to weed out the negative precedent and preserve
the positive-and create an artificially weighty and one-sided
estimate of what comprises ‘the case law.'”).
Absent “extraordinary circumstances, ” a vacatur
of an earlier ruling would not be justified based simply on
the parties' settlement. See, e.g., U.S.
Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S.
18, 29 (1994); Aqua Marine Supply v. AIM Machining,
Inc., 247 F.3d 1216, 1221 (Fed. Cir. 2001); In re
Memorial Hosp. of Iowa Cty., 862 F.2d at 1300; City
of Aurora, 2010 WL 2670819, at *1; Polymasc Pharms.,
PLC., v. Alza Corp., 2004 WL 633256, at *1-2 (D. Del.
Mar. 26, 2004); Clever Devices, Ltd., v. Digital
Recorders, Inc., 2004 WL 1265934, at *1 (N.D. Tex. June
3, 2004); Vutek, Inc. v. Leggett & Platt, Inc.,
2009 WL 3806368, at *1 (E.D. Mo. Nov. 12, 2009);
Benavides, 820 F.Supp. at 1288 (adopting the
plurality of circuits' reasoning that vacatur based on
post-judgment settlement should be refused).
support of its motion, plaintiff argues:
The parties have reached a settlement in this case.
Accordingly, plaintiff moves the Court for an order setting
aside the December 29, 2019 [sic] default judgment entered
against Defendant Head & Associates, P.C. and dismissing
this case as to Head & Associates, P.C.
No. 96 at 2. The Court declines to do so. Default judgments
punish parties who fail to appear before the court, and
promote justice by deterring such behavior.See Cessna
Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715
F.2d 1442, 1444-45 (10th Cir. 1983) (“[A] workable
system of justice requires that litigants not be free to
appear at their pleasure. We therefore must hold parties and
their attorneys to a reasonably high standard of diligence in
observing the courts' rules of procedure. The threat of
judgment by default serves as an incentive to meet this
standard.”). Allowing a party against whom default
judgment was entered to evade such judgment by reaching a
post-judgment settlement would undermine the Court's
authority to ensure that litigants appear to defend claims
brought against them. Moreover, a judicial opinion is a
public act of government that parties cannot expunge through
a private agreement. In re Memorial Hosp. of Iowa
Cty., 862 F.2d at 1300. “[S]uch a practice [would]
come dangerously close to engendering improper advisory
opinions by courts, [and] might also encourage inefficiencies
through repetitive litigation.” City of
Aurora, 2010 WL 2670819, at *1.
previously denying the parties' request to vacate the
default judgment issued against Head & Associates, the
Court stated that “absent extraordinary
circumstances” it would decline to vacate the prior
orders in this case. Docket No. 90 at 1. Plaintiff's
two-sentence argument fails to provide a basis for vacating
the default judgment apart from the mere fact of settlement.
The Court, therefore, declines to vacate its entry of default