City
and County of Denver District Court No. 18CV30504 Honorable
Brian R. Whitney, Judge.
Bighorn Legal, Jonathan Hagn, Englewood, Colorado, for
Plaintiff-Appellant
No
Appearance for Defendant-Appellee
OPINION
WELLING JUDGE.
¶
1 Spiremedia Inc. appeals the district court's order
denying its motion for default judgment and dismissing the
case for violation of the district court's delay
reduction order (DRO).
¶
2 This case raises an issue of first impression: What is a
court required to tell a party when it denies a motion for
default judgment pursuant to C.R.C.P. 55(b) and 121, section
1-14, and dismisses a case for failure to comply with the
rules? We conclude that a court is required to identify the
deficiencies in the motion that supports its decision,
particularly before taking the extraordinary step of
dismissing the case. Such an explanation provides a party an
opportunity to remedy the deficiencies in its motion. Because
the court here didn't adequately articulate its basis for
denying the motion for default judgment before dismissing the
case, we reverse the judgment and remand the case for further
proceedings.
I.
Background
¶
3 On February 8, 2018, Spiremedia filed its complaint against
Timothy Richard Wozniak for breach of contract and treble
damages for a dishonored check pursuant to section
13-21-109(2), C.R.S. 2019. Four days later, the district
court issued a DRO, stating that "application for entry
of default under C.R.C.P. 55(a) must be filed within 14 days
after default has occurred. . . . Motions for entry of
default judgment must comply with C.R.C.P. 121, §
1-14." The DRO also warned (in bold and all capital
letters) that "IF AN ATTORNEY OR PRO SE PARTY FAILS TO
COMPLY WITH THIS ORDER, THE COURT MAY DISMISS THE CASE
WITHOUT PREJUDICE."
¶
4 On May 8, 2018, Spiremedia filed an affidavit of service
attesting that Wozniak was served outside of Colorado on May
6, 2018. (Under C.R.C.P. 12(a)(2), a defendant served outside
of Colorado has thirty-five days from the date of service to
file an answer or other initial response.) Thus, Wozniak had
until June 10, 2018, to respond to the complaint. By June 15,
2018, however, Wozniak had not filed any responsive pleadings
or motion to dismiss, so Spiremedia filed a motion for
default judgment under C.R.C.P. 55.
¶
5 On July 11, 2018, the district court denied
Spiremedia's motion for default judgment, stating only:
"A motion for default judgment must comport with the
requirements of C.R.C.P. 121, § 1-14. The Motion as
filed does not do so, and is therefore presented in an
improper format. Accordingly, the Motion is DENIED." The
court did not provide any explanation of those purported
deficiencies.
¶
6 Two days later, Spiremedia, apparently uncertain was
deficienct about its first motion - but suspecting it may
have been a failure to include an affidavit stating Wozniak
is not a minor, incompetent, or a servicemember, see
C.R.C.P. 121, § 1-14(1)(c) - refiled the motion for
default judgment, this time adding what it referred to as an
"affidavit equivalent" pursuant to the Uniform
Unsworn Declarations Act (UUDA), § 13-27-104(1), C.R.S.
2019, averring compliance with C.R.C.P. 121, section
1-14(1)(c).
¶
7 On September 10, 2018, the district court ruled on
Spiremedia's second motion for default judgment as
follows:
Plaintiff previously filed a motion for default judgment on
June 15, 2018. That motion was denied for failure to comport
with the requirements of C.R.C.P. 121 § 1-14. The
current Motion is substantially identical to that motion,
with the addition of a[n] unnotarized affidavit regarding
Defendant's servicemember status. Thus, as with the prior
motion, this Motion does not comport with C.R.C.P. 121 §
1-14, and is therefore presented in an improper format.
Accordingly, the Motion is DENIED. Furthermore, because
Plaintiff has twice filed the Motion in an improper format,
Plaintiff is in violation of this Court's Delay Reduction
Order. The action is accordingly DISMISSED.
We will
refer to this order as the Dismissal Order.
¶
8 On September 19, 2018, Spiremedia filed a motion for
reconsideration of the Dismissal Order. It asserted that,
after a review of the requirements for a motion for default
judgment listed in C.R.C.P. 121, section 1-14, it was
"unable to discern any substantive defect in the papers
already filed with the Court." And it told the court
that, even if there was a defect, the court "has still
never notified [Spiremedia] as to what 'further
documentation, proof, or hearing is required' to resolve
the Motion . . . ." (Quoting C.R.C.P. 121, §
1-14(2).) Thus, Spiremedia contended, the district court
should vacate its order dismissing the case and either enter
default judgment in its favor or "notify [Spiremedia]
and its counsel as to the specific defect(s) with the Motion
[for default judgment] under C.R.C.P. 121[, ] §
1-14."
¶
9 On October 11, 2018, the district court denied
Spiremedia's motion to reconsider. In its order, the
district court said, without further explanation, that
"[t]he supporting documents for both prior motions were
wholly incomplete for the purposes of default judgment, sworn
or not."
II.
Analysis
¶
10 Spiremedia appeals both the Dismissal Order and the order
denying its motion for reconsideration, raising two
contentions. First, it asserts that the district court erred
by denying its second motion for default judgment because it
complied with C.R.C.P. 121, section 1-14. Second, Spiremedia
asserts that, even if its second motion for default judgment
was deficient, the district court erred by failing to notify
Spiremedia as to what further documentation or proof was
required for the motion to comply with the rules. While we
disagree with Spiremedia's first contention - that its
second motion for default judgment complied with C.R.C.P.
121, section 1-14 - we are persuaded by its second
contention. Accordingly, we ...