Viegas et al v. Partner Colorado Credit Union et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 24–cv–00415–PAB–MDB
KERI L VIEGAS, the individual, and
JAMES VIEGAS, the individual,
Plaintiffs,
v.
PARTNER COLORADO CREDIT UNION,
HARRY L. SIMON,
DANIELLE L. RAMOS,
SARA M. GARRIDO, and
DIANA COFFEY,
Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant Judge Garrido’s Motion to Set Aside Entry
of Default ([“Motion to Set Aside”], Doc. No. 30) and Plaintiffs’ Request for Entry of Default
Judgment ([“Default Judgment Motion”], Doc. No. 26) (collectively, the “Motions). Plaintiffs
filed a response to the Motion to Set Aside. (Doc. No. 34.) The parties have not filed any other
briefing on the Motions, but the Court has determined that additional briefing would not
materially assist in its analysis. For the foregoing reasons it is ORDERED1 Defendant Judge
1 “The Court’s ruling on [a motion to set aside a Clerk’s entry of default] is non-dispositive as it
does not remove any claim or defense from this case.” Barak v. Rooster’s Guide & Outfitting
Adventures, 2020 WL 9424264, at *1 n. 2 (D. Colo. Apr. 28, 2020) (citing Goodwin v. Hatch,
2018 WL 3454972, at *4 (D. Colo. July 18, 2018), aff’d, 781 F. App’x 754 (10th Cir.
2019)(“A motion to set aside a Clerk’s entry of default (as opposed to grant or set aside a default
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Garrido’s Motion to Set Aside is GRANTED, and it is further RECOMMENDED Plaintiffs’
Default Judgment Motion be DENIED as moot.
PRO SE SUMMARY
The Court is granting Defendant Judge Garrido’s Motion to Set Aside Entry of Default,
and recommending that your motion for default judgment be denied. Defendant Judge Garrido’s
delay in entering the case was not willful, and setting aside the entry of default will not cause
you prejudice. Thus, under the applicable standard and pursuant to the Tenth Circuit’s strong
preference for deciding cases on their merits, the Court is setting aside the entry of
default. This is only a high-level summary of the Court’s Order and Recommendation,
which is set forth in full below.
BACKGROUND
Plaintiffs, proceeding pro se, initiated this action on February 12, 2024. (Doc. No. 1.) On
April 10, 2024, Plaintiffs submitted a purported proof of service as to Defendant Judge Garrido.2
(Doc. No. 17.) According to Plaintiffs’ proof of service, a process server “attempted at least 10
times to serve Sara M. Garrido in person.” (Id. at 3.) The process server indicated the summons
was returned “unexecuted.” (Id. at 1.) The process server’s notes read:
judgment) is considered a non-dispositive motion that a Magistrate Judge can decide directly
under 28 U.S.C. § 636(b)(1)(A), rather than addressing by Report and Recommendation
under 28 U.S.C. § 636(b)(1)(B).” (citation omitted)). “Pursuant to 28 U.S.C. § 636 (b)(1)(A), ‘[a]
judge of the court may reconsider any pretrial matter under subparagraph (A) where it has been
shown that the magistrate judge’s order is clearly erroneous or contrary to law.’ Any party may
object to this non-dispositive Order within fourteen (14) days.” Barak, 2020 WL 9424264, at *1
n. 2 (citing Fed. R. Civ. P. 72(a)).
2 Plaintiffs had previously filed purported proofs of service of Defendant Judge Garrido on
March 19, 2024 (Doc. Nos. 10; 12.) The Court struck each for failure to comply with the
applicable rules for service. (Doc. Nos. 11; 13.)
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• 	2/27/2024 3:40 PM: There was no answer at the address.
• 	3/3/2024 11:39 AM: I was unable to access the address due to storm.
• 	3/7/2024 11:00 AM: I was unable to access the address due to storm.
• 	3/11/2024 12:37 PM: There was no answer at the address.
• 	3/15/2024 8:30 AM: I was unable to access the address due to storm.
• 	3/19/2024 9:41 AM: There was no answer at the address.
• 	3/23/2024 3:03 PM: I spoke with an individual who identified themselves
as the subject's son and they stated subject resides but not available at this
time. The individual appeared to be a male contact. Son was under 18 but
said Mom was out shopping.
• 	3/30/2024 3:54 PM: There was no answer at the address. Car listed are
present, garage door open, no answer at door.
• 	4/4/2024 2:55 PM: There was no answer at the address.
• 	4/8/2024 6:05 PM: There was no answer at the address.
(Id. at 1–2.) Plaintiffs’ then state, “[t]he Office of the Attorney General was serv[ed] on March
23, 2024, though certified mail. (Id. at 3; see id. at 4–5 (showing a photo of the mailing sent to
the Attorney General’s office, and a USPS tracking receipt).) And, “Sara M. Garrido was
officially served ... in accordance with the Federal Rules of Civil Procedure.) (Id. at 3.)
Defendant Judge Garrido failed to respond to the Complaint within 21 days of the
alleged service. On April 23, 2024, Plaintiffs moved for, and the Clerk of Court granted, an entry
of default against Defendant Judge Garrido.3 (Doc. Nos. 24; 25.) Plaintiffs filed their Default
Judgment Motion on April 24, 2024. (Doc. No. 26.)
In her Motion to Set Aside, Defendant Judge Garrido argues Plaintiffs have failed to
demonstrate proper service under the applicable rules. (Doc. No. 30 at 4–6.) Defendant Judge
Garrido further argues Plaintiffs will not suffer prejudice by setting aside the entry of default and
she has meritorious defenses against Plaintiffs’ claims. (Id. at 6–10.)
3 Plaintiffs’ initial motion for entry of default was denied by the clerk for failure to include an
“affidavit or declaration concerning defendant(s) military status.” (Doc. Nos. 20; 22.)
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LEGAL STANDARD
Courts “may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). “In
deciding whether to set aside an entry of default, courts may consider, among other things,
‘whether the default was willful, whether setting it aside would prejudice the adversary, and
whether a meritorious defense is presented.’” Pinson v. Equifax Credit Info. Servs., Inc., 316 F.
App’x 744, 750 (10th Cir. 2009) (quoting Dierschke v. O’Cheskey, 975 F.2d 181, 183 (5th Cir.
1992)). “A court need not consider all of the factors, and may consider other factors as well.”
Guttman v. Silverberg, 167 Fed. Appx. 1, 4 (10th Cir. 2005). The Court is guided by the Tenth
Circuit’s strong preference for deciding cases on the merits as opposed to default. See Rains v.
Rains, 946 F.2d 731, 732–33 (10th Cir. 1991).
ANALYSIS
Weighing the applicable factors, the Court determines the entries of default should be set
aside. First, there is no indication Defendant Judge Garrido willfully defaulted in this
manner. Though the Court declines to ultimately decide the issue, Defendant Judge Garrido does
not appear to have been properly served, and there’s no evidence in the record she has
intentionally avoided this suit. (See Doc. No. 17 at 1–2 (process server’s notes showing a copy of
the summons and complaint were not personally served on Defendant Judge Garrido or someone
at her home of suitable age and discretion)); see also Ward v. Lutheran Med. Ctr., No. 18-CV-
00232-CMA-STV, 2019 WL 7630809, at *2 (D. Colo. Dec. 12, 2019), report and
recommendation adopted, No. 18-CV-00232-CMA-STV, 2020 WL 1951580 (D. Colo. Apr. 23,
2020) (“[C]ourts have set aside default where the defendants were unaware of the lawsuit.”
(citing United States v. Talmage, No. 1:16-cv-19, 2016 WL 7007321, at *2 (D. Utah. Nov. 30,
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2016)); Niederstadt v. Eldridge, No. 2:16-cv-0255 SMV/CG, 2016 WL 9777152, at *1, *3 (D.
N.M. June 1, 2016)). This factor favors Defendant Judge Garrido.
Second, setting aside the entry of default will not prejudice Plaintiffs. The entry of default
was only six days old when the Motion to Set Aside was filed. (See Doc. No. 25 (showing the
entry of default date as April 23, 2024)); see Apex Mobility Transp., LLC v. First Transit, Inc.,
2015 WL 59553, at *4 (D. Colo. Jan. 2, 2015) (finding no prejudice to the plaintiff “because
Defendant moved to vacate the entry of default within two weeks of the Clerk’s entry of
default....”); Procom Supply, LLC v. Langner, 2012 WL 2366617, at *3 (D. Colo. June 21,
2012) (finding no prejudice in setting aside entry of default when the defendant filed a motion
for relief three days after default was entered); Zen & Art of Clients Server Computing, Inc. v.
Res. Support Assocs., Inc., 2006 WL 1883173, at *2 (D. Colo. July 7, 2006) (finding no
prejudice where counsel entered an appearance seven days after the entry of default and filed a
motion for relief ten days after default was entered). Thus, Plaintiffs have suffered little, if any,
delay in pursuing their claims. See SecurityNational Mortg. Co. v. Head, No. 13-cv-03020-PAB-
BNB, 2014 WL 4627483, at *3 (D. Colo. Sept. 15, 2014) (“Prejudice is established when a
plaintiff’s ability to pursue the claim has been hindered.”). Moreover, the only harm to Plaintiffs
in setting aside the entry of default is that Plaintiffs will have to prove their case. Lacy v. Sitel
Corp., 227 F.3d 290, 293 (5th Cir. 2000) (“There is no prejudice to the plaintiff where the setting
aside of the default has done no harm to plaintiff except to require it to prove its case.” (citation
and internal quotation omitted).) There is no indication that Plaintiffs’ ability to pursue their
claims will be hindered by the loss of evidence, for example. SecurityNational Mortgage Co.,
2014 WL 4627483, at *3. This factor favors Defendant Judge Garrido.
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Finally, Defendant Judge Garrido has raised sufficiently meritorious defenses to set aside
an entry of default. See United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615
F.3d 1085, 1094 (9th Cir. 2010) (noting that “[a]ll that is necessary to satisfy the ‘meritorious
defense’ requirement is to allege sufficient facts that, if true, would constitute a defense”). The
claims against Defendant Judge Garrido arise out of a “breach of contract action in Jefferson
County Court before [her].” (Doc. No. 30 at 2.) Defendant Judge Garrido contends she
is absolutely immune from all claims for monetary damages arising out of acts committed within
her judicial discretion. (Id. at 8.) She further contends that Plaintiffs’ claims are barred by
the Rooker-Feldman doctrine and the Eleventh Amendment and that certain claims lack a private
right of action. (Id. at 8–10.) These general defenses are more than enough to satisfy the
relatively low threshold for this last factor. This factor favors Defendant Judge Garrido.
CONCLUSION
Based on the foregoing, it is ORDERED that Defendant Judge Garrido’s Motion to Set
Aside Entry of Default (Doc. No. 30) is GRANTED. It is further RECOMMENDED that
Plaintiffs’ Request for Entry of Default Judgment (Doc. No. 26) be DENIED as moot.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
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report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 24 th day of May, 2024.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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