United States District Court, D. Colorado
JOSE LOPEZ, on his own behalf and on behalf of all others similarly situated, Plaintiff,
HIGHMARK CONSTRUCTION, LLP, and GABRIEL MATTICE, Defendants.
ORDER ENTERING DEFAULT JUDGMENT AGAINST
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
matter is before the Court on a Motion for Default Judgment
and to Strike Answer of Corporate Entity, filed by Plaintiffs
Jose Lopez and Ricardo Perez (Plaintiffs, collectively)
against Defendants Highmark Construction, LLP and Gabriel
Mattice (Defendants, collectively). (Doc. # 37.) For the
reasons discussed below, the Court enters a default judgment
following well-pleaded facts are deemed admitted by
Defendants and taken as true for purposes of this order.
See, e.g., Olcott v. Del.
Flood Co., 327 F.3d 1115, 1125 (10th Cir.
2003) (stating that upon default, the defendant admits the
Highmark Construction, LLP is a construction business in
Colorado that is owned and managed by Defendant Gabriel
Mattice. (Doc. # 1 at ¶¶ 1, 10-11.) Plaintiff Jose
Lopez worked as a construction laborer for Defendants from
September 2015 to April 2017, totaling about eighty-three
weeks. (Doc. # 37-3 at ¶¶ 1, 5.) Plaintiff Perez
worked as a laborer for Defendants from January 2017 to March
2017, for a total of twelve weeks. (Doc. # 37-4 at
¶¶ 1, 5.) During their employment, Defendants
failed to pay Plaintiffs (1) overtime wages for hours worked
beyond forty each workweek; (2) wages for travel time; and
(3) wages for break periods required under Colorado law.
Lopez therefore brought this lawsuit on May 1, 2017, alleging
violations of the Fair Labor Standards Act (FLSA), 28 U.S.C.
§§ 201 et seq., and the Colorado Wage
Order (MWO). Service on Defendants was effected on May 7,
2017. (Doc. # 5.) Defendant Mattice filed an answer to the
Complaint on May 18, 2017. (Doc. # 10.) Plaintiff Perez
joined in this lawsuit as an opt-in Plaintiff on June 13,
2017. (Doc. # 8-1.) On July 12, 2017, Defendants failed to
appear at the Scheduling Conference held before Magistrate
Judge Craig B. Shaffer. (Doc. # 12.) The Court then ordered
(1) Defendant Highmark Construction, LLP to show cause why
default judgment should not be entered against it for failure
to retain an attorney and appear in this case, and (2)
Defendant Mattice to show cause why default judgment should
not be entered against him for failure to appear at the
Scheduling Conference. (Doc. # 12.) On August 14, 2017,
Defendant Mattice filed a letter with the Court indicating
that he and Defendant Highmark Construction, LLP could not
afford an attorney and were not aware of the missed
Scheduling Conference. (Doc. # 13.) On September 21, 2017,
Magistrate Judge Shaffer held a telephone status conference;
Defendant Mattice appeared, but Defendant Highmark
Construction did not. (Doc. # 16.)
November 7, 2017, Plaintiffs served Defendants written
discovery requests. (Doc. # 37 at ¶ 12.) Defendants did
not respond. (Id.)
December 7, 2017, the Court held a second Scheduling
Conference. (Doc. ## 25-27.) Neither Defendant appeared at
the conference. (Doc. # 27.) On December 8, 2017, the Court
ordered both Defendants to show cause by January 8, 2018, why
default should not be entered against them for failure to
appear at the second Scheduling Conference in violation of
court orders. (Doc. # 28.) To date, neither Defendant has
responded to the show cause order, nor has Defendant Highmark
Construction filed an answer in this case.
March 13, 2018, the Clerk of Court entered default as to both
Defendants. (Doc. # 36.) That same day, Plaintiffs filed the
instant Motion for Default Judgment, requesting damages for
earned but unpaid wages and an award of attorney's fees
judgment may be entered against a party who fails to appear
or otherwise defend. Fed.R.Civ.P. 55. In order to obtain a
judgment by default, the moving party must follow the
two-step process described in Rule 55: “first, he or
she must seek an entry of default from the Clerk of the Court
under Rule 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).” Richfield
Hospitality, Inc. v. Shubh Hotels Detroit, LLC, No.
10-cv-00526-PAB-MJW, 2011 WL 3799031, at *2 (D. Colo. Aug.
two, the decision to enter default judgment is
“committed to the district court's sound
discretion.” Olcott v. Delaware Flood Co., 327
F.3d 1115, 1124 (10th Cir. 2003) (quoting Dennis Garberg
& Assocs. v. Pack-Tech Int'l Corp., 115 F.3d
767, 771 (10th Cir. 1997)). Nonetheless, “there must be
a sufficient basis in the pleadings” for default
judgment to be entered, since a party in default “does
not admit mere conclusions of law.” Bixler v.
Foster, 596 F.3d 751, 762 (10th Cir. 2010).
defendant who fails to answer, plead, or otherwise defend an
action is deemed to have admitted the well-pleaded factual
allegations of the complaint as true. See,
e.g., Olcott, 327 F.3d at 1125 (stating
that upon default, the defendant admits the plaintiff's
allegations); see also Personal Indus. Loan Corp. v.
Forgay, 240 F.2d 18, 20 (10th Cir. 1956) (“By
failing to appear and permitting a default judgment to be
entered, [defendant] admitted only facts well
pleaded.”). In addition, the court accepts the
undisputed facts set forth in any affidavits and exhibits.
Deery American Corp. v. Artco Equip. Sales,
Inc., No. 06-cv-01684-EWN-CBS, 2007 WL 437762, at *3
(D.Colo. Feb. 6, 2007) (unpublished).
default judgment is available “when the adversary
process has been halted because of an essentially
unresponsive party. In that instance, the diligent party must
be protected lest he be faced with interminable delay and
continued uncertainty as to his rights. The default judgment