Ammerman et al v. Fisher et al

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
PATRICIA AMMERMAN; and HARRIS S.
AMMERMAN,
Plaintiffs,
v.
DAVID LLOYD FISHER, et al.,
Defendants.
REPORT AND RECOMMENDATION
TO DENY PLAINTIFFS’ MOTION FOR
DEFAULT JUDGMENT (DOC. NO. 68)
WITHOUT PREJUDICE
Case No. 2:24-cv-00790
Chief District Judge Jill N. Parrish
Magistrate Judge Daphne A. Oberg
Patricia and Harris Ammerman, proceeding pro se,1 filed this action alleging
“fraud in the course of Defendants’ operation of a Racketeering Enterprise engaged in a
pattern of committing wire fraud.”2 The Ammermans move for default judgment against
David Fisher, Fisher Law Group PLLC, Darrell Rideaux, EFL LLC, Thomas NyKamp,
and Global Business Finance Corporation.3 (The Ammermans have obtained
certificates of default for these defendants.)4 But other defendants—such as Andre
Ester and Craig Peterson—are not in default. Because the Ammermans seek damages
1 Mr. Ammerman states he is an attorney, but he is not licensed to practice in Utah.
(See Pls.’ Resp. to Show Cause Orders 3, Doc. No. 59.)
2 (See Compl. ¶ 1, Doc. No. 1.)
3 (Pls.’ Mot. for Default J. (Mot.), Doc. No. 68.) Although the Ammermans also moved
for default judgment against Andre Ester, the court has set aside his default. (Mem.
Decision & Order Granting Mot. to Set Aside Default Against Def. Andre Ester, Doc.
No. 117.)
4 (Default Certificates, Doc. Nos. 47, 51, 53 & 56.)
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against all defendants jointly and severally, and entering default judgment against the
defaulting defendants now risks possible inconsistent judgments later, the undersigned
recommends5 the district judge deny the motion for default judgment without prejudice.
BACKGROUND
The Ammermans brought this action against eighteen defendants,6 alleging the
defendants fraudulently obtained $1.126 million from them through the operation of a
racketeering enterprise.7 According to the complaint, “Ken Phillips, Andre Ester, and
Darrell Rideaux are the architects of this enterprise and wire fraud ring.”8 They
registered “numerous LLC’s over the years that falsely purported to be investment
companies to use in their fraudulent contracts with victims to provide them a false sense
of security.”9 These architects “induced victims to send them millions of dollars through
5 This case is referred to the undersigned magistrate judge under 28 U.S.C.
§ 636(b)(1)(B). (See Doc. No. 33.)
6 (Compl. 1–5, Doc. No. 1.) The Ammermans initially named twenty-seven defendants
but have since voluntarily dismissed nine of them—John M. Burkman, Burkman &
Associates, LLC, Jacob Alexander Wohl, Kenneth C. Rudy, Michael Perog, Ken Phillips,
Gaunlet Holdings Asset Management (UK) LTD, Gauntlet Holdings, LLC, and Antonio
Marino. (See Doc. Nos. 39, 59, 70, 84, & 90.) The Ammermans have failed to
sufficiently respond to three orders to show cause seeking proof that defendant Joann
Calley has been served with the complaint. (See Doc. Nos. 82, 92 & 98.) And the court
recently dismissed eight more defendants for lack of personal jurisdiction—Keisha Perry
Walker, the Perry Law Group, LLC, Todd Jackson, Todd Jackson Law, PC, Erik Paul
Weingold, Weingold Law PLLC, and Paul and Kirsten Nykamp. (Order Adopting R. &
R., Doc. No. 110.) These defendants are mentioned only where necessary to provide
context.
7 (Compl. ¶ 1, Doc. No. 1.)
8 (Id. ¶ 39.)
9 (Id.)
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‘escrow’ attorneys that they recruited, including David Fisher” and others, through “false
assurances that their money was being invested . . . and falsely guaranteeing immense
returns, with the intent to deceive and defraud.”10 Craig Peterson’s “role in this
racketeering enterprise” was to “string along victims with knowingly false assurances”
that they would get a return on their investments.11
The Ammermans claim they fell victim to the defendants’ fraud scheme. They
allege the defendants induced them to send Mr. Fisher $1.126 million to be reinvested,
promising them “ten times return on any money they sent [Mr.] Fisher.”12 After Mr.
Fisher agreed the money would be reinvested, the Ammermans wired him a total of
$1.126 million to his attorney trust account.13 They first wired $1 million.14 Relying on
Mr. Fisher and Mr. Peterson’s “false assurance” that the “principal would be returned
within 90 days,” the Ammermans took out a $250,000 loan to get to “the initial $1 million
which Defendants had claimed was the minimum investment amount.”15 The day after
the transfer, Mr. Fisher notified Mr. Ester that he had obtained the Ammermans’
$1,000,000.16 Mr. Fisher and Mr. Ester then discussed the “kickbacks” to the other co-
10 (Id. ¶ 44.)
11 (Id. ¶ 73.)
12 (Id. ¶ 2.)
13 (Id. ¶¶ 2, 120, 183, 195–96.)
14 (Id. ¶ 183.)
15 (Id. ¶¶ 180–82.)
16 (Id. ¶ 185.)
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conspirators.17 And then Mr. Fisher disbursed the money.18 At some point, the
Ammermans sent Mr. Fisher a second wire transfer for $126,000.19 Mr. Fisher
“promptly notified” Mr. Ester, Mr. Rideaux, and Mr. Phillips.20 He then “received further
instructions from [Mr.] Ester and [Mr.] Phillips on how to distribute” the money “among
the members of the wire fraud ring.”21 Various money transfers followed, including
some to Mr. Ester.22
According to the complaint, the Ammermans’ money was never invested.23
Instead, Mr. Fisher and the other escrow attorneys “pocketed” a portion before
“disbursing the rest to [Mr.] Phillips, [Mr.] Rideaux, [Mr.] Ester, and their other co-
conspirators,” including Craig Peterson.24 Mr. Rideaux and Mr. Phillips allegedly
directed Mr. Fisher to wire money to Mr. Peterson in exchange for his “role and
contribution to the fraud conspiracy.”25 Mr. Peterson had knowingly given “false
assurances” to Ms. Ammerman that the money was safe and there would be a
17 (Id. ¶¶ 186–89.)
18 (Id. ¶ 190.)
19 (Id. ¶¶ 195–96.)
20 (Id. ¶ 197.)
21 (Id.)
22 (Id. ¶¶ 198(14)–(15).)
23 (Id. ¶¶ 121, 183, 195–96.)
24 (Id. ¶¶ 65, 125.)
25 (Id. ¶ 117.)
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guaranteed return.26 He also allegedly made false promises about returning the money,
stringing the Ammermans along for years,27 and made “recommendations on courses of
action” in furtherance of the racketeering enterprise and fraud scheme.28 Mr. Peterson,
Mr. Phillips, and Mr. Fisher used interstate communications in furtherance of the
scheme, communicating with each other and directly to the Ammermans “to make
material misstatements and omissions to further their scheme to defraud.”29
Based on these allegations, the Ammermans assert thirteen causes of action
against the defendants for substantive RICO violations, conspiracy to violate RICO,
common law fraud, breach of contract, unjust enrichment, quasi contract, “implied in
fact” contract, civil conspiracy, breach of fiduciary duty, negligence, gross negligence,
and “promissory estoppel/detrimental reliance.”30 The Ammermans seek to hold all the
defendants jointly and severally liable for their damages.31 Mr. Peterson has answered
the complaint, denying every allegation and all causes of action.32 Mr. Ester’s deadline
to answer the complaint is February 10, 2026.
26 (Id. ¶ 74.)
27 (Id. ¶ 199.)
28 (Id. ¶ 75.)
29 (Id. ¶¶ 76, 91.)
30 (Id. ¶¶ 215–352.)
31 (Id. ¶ 353.)
32 (Answer of Def. Craig Steven Peterson, Doc. No. 91.)
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DISCUSSION
Pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, the Ammermans
move for default judgment against Mr. Fisher, Fisher Law Group, Mr. Rideaux, EFL,
Thomas NyKamp, and Global Business Finance Corporation.33 But as noted above,
some defendants are not in default—namely, Mr. Ester and Mr. Peterson. Because the
Ammermans seek damages against all defendants jointly and severally and entering
default judgment against the defaulting defendants now risks inconsistent judgments
later, the motion should be denied.
Although a party is in default if they fail to appear or otherwise defend,34 a party’s
default is not necessarily sufficient to entitle a plaintiff to an entry of default judgment.35
“Instead, ‘[o]nce default is entered, it remains for the court to consider whether the
unchallenged facts constitute a legitimate cause of action.’”36 Courts have broad
discretion in deciding whether to enter a default judgment.37 And it is well settled that
“when one of several defendants who is alleged to be jointly liable defaults, judgment
should not be entered against him until the matter has been adjudicated with regard to
33 (Mot., Doc. No. 68.)
34 See Fed. R. Civ. P. 55(a).
35 See Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010).
36 Gen. Steel Domestic Sales, LLC v. Chumley, 306 F.R.D. 666, 668 (D. Colo. 2014)
(quoting Bixler, 596 F.3d at 762 (citation omitted)).
37 Grandbouche v. Clancy, 825 F.2d 1463, 1468 (10th Cir. 1987).
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all defendants, or all defendants have defaulted.”38 This rule applies when the
defendants are alleged to be “jointly and severally” liable,39 as well as “in situations
where multiple defendants have closely related defenses.”40 The “key aim of the rule is
the avoidance of inconsistent judgments.”41
This rule applies here. The Ammermans explicitly seek to hold all defendants
jointly and severally liable for their damages.42 That being so, entering judgment
against the defaulting defendants now would unnecessarily risk inconsistent judgments
and damage awards later.43 This is true even in view of the broader complaint, where
38 Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145, 147 (10th Cir. 1985) (per curiam)
(citing Frow v. DeLaVega, 82 U.S. 552 (1875)).
39 Id. at 148.
40 Wilcox v. Raintree Inns of Am., Inc., 76 F.3d 394, No. 94-1050, 1996 U.S. App. LEXIS
1501, at *7–8 (10th Cir. Feb. 2, 1996) (unpublished table opinion); see also 10A Wright
& Miller’s Federal Practice & Procedure § 2690 (4th ed. 2025) (“Although the rule
developed in the Frow case applies when the liability is joint and several, it probably can
be extended to situations in which joint liability is not at issue but several defendants
have closely related defenses.”).
41 Wilcox, 1996 U.S. App. LEXIS 1501, at *7.
42 (Compl. ¶ 353, Doc. No. 1 (asking that damages “be assessed against the
Defendants, jointly and severally” (emphasis added)).) In their motion, the Ammermans
reaffirm their intent to hold both defaulting defendants and non-defaulting defendants
jointly and severally liable. (See Mot. 9, Doc. No. 68 (“Plaintiffs request entry of default
[judgment], jointly and severally, against Andre Ester, David Lloyd Fisher, Darrell Walter
Rideaux, and their businesses (or shell companies) Fisher Law Group PLLC, EFL LLC,
and Global Business Finance Corporation for $9,878,000.”).)
43 See Hunt, 770 F.2d at 148 (“[J]ust as consistent verdict determinations are essential
among joint tortfeasors, consistent damage awards on the same claim are essential
among joint and several tortfeasors.”); In re Uranium Antitrust Litig., 617 F.2d 1248,
1262 (7th Cir. 1980) (concluding that a plaintiff seeking to hold defendants jointly and
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each of the Ammermans’ claims arise out of the same alleged conspiracy and
racketeering enterprise designed to defraud them of $1.126 million. For the most part,
the complaint does not differentiate which claims are against which defendants. Most
claims are against all defendants,44 while a few appear more specific to Mr. Fisher.45
But the risk of inconsistent judgments and damages awards remains the same across
the board.
For instance, the Ammermans assert their RICO and conspiracy claims against
all defendants. In Count I, they claim the defendants violated RICO by devising a
scheme and engaging in a pattern of racketeering activity intended to defraud them
through wire fraud, fraudulent investment agreements, false assurances, and then by
pocketing the money.46 In Count II, they claim the defendants conspired with one
another to violate RICO by agreeing to participate in the racketeering enterprise to
obtain the Ammermans’ money through fraud.47 Similarly, in Count IX, the Ammermans
claim the defendants conspired to obtain the $1.126 million through their “fraud
severally liable could “not split its claim and proceed to damages against the defaulters
and then proceed to a separate damages award against the answering defendants”).
44 (Compl. ¶¶ 215–302, Doc. No. 1 (Counts I through IX).)
45 (Id. ¶¶ 303–52 (Counts X through XIII).)
46 (Id. ¶¶ 215–37.)
47 (Id. ¶¶ 238–43.)
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scheme.”48 Because liability on these claims would necessarily be joint and several,
entering default judgment now risks inconsistent judgments.49
The same is true for the Ammermans’ conversion, fraud, unjust enrichment, and
contractual claims because defaulting and non-defaulting defendants would have
closely related defenses. In Counts III and IV, the Ammermans generally contend the
defendants converted their $1.126 million for their own gain through fraud and false
representations.50 In Counts V through VIII, the Ammermans contend both defaulting
and non-defaulting defendants breached contractual obligations by not investing the
$1.126 million and pocketing it for their own benefit through this fraud scheme.51 These
claims arise from (or are based on) the same alleged conspiracy to fraudulently induce
48 (Id. ¶¶ 294–302.)
49 See United States v. Philip Morris USA Inc., 316 F. Supp. 2d 19, 27 (D.D.C. 2004)
(explaining that “[e]very circuit in the country that has addressed the issue” in the RICO
context “has concluded that the nature of both civil and criminal RICO offenses requires
imposition of joint and several liability”); see also Green Oak Hedge Fund, Ltd. v.
Hopkinson, No. 2:06-cv-636, 2008 U.S. Dist. LEXIS 2817, at *10 (D. Utah Jan. 14,
2008) (unpublished) (explaining liability for state law civil conspiracy claim “will be joint
and several”); Jedrziewski v. Smith, 128 P.3d 1146, 1149 (Utah 2005) (holding that the
Utah Liability Reform Act “does not, nor could it constitutionally, reach the domain of
civil conspiracy” for which liability is joint and several).
50 (See Compl. ¶¶ 244–67, Doc. No. 1.)
51 (Id. ¶¶ 268–73 (claiming breach of contract and alleging “Defendants failed to perform
their end of the contract because they never invested the money” and instead pocketed
the money); id. ¶¶ 274–79 (claiming unjust enrichment for benefit conferred “on [Mr.]
Fisher and the Defendants” who were all aware of the benefit because they received a
portion of the $1.126 million); id. ¶¶ 280–84 (claiming quasi contract for “conferred
money on Defendants as a result of Defendants’ wrongful fraud and deception”); id. ¶¶
285–93 (claiming “implied in fact” contract arose from transferring $1.126 million to Mr.
Fisher based on “Defendants’ false pretenses”).)
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the Ammermans into investing in the defendants’ scheme. As a result, both defaulting
and non-defaulting defendants would have closely related, if not identical defenses.52
Accordingly, entering default judgment now before adjudicating this matter as to the
non-defaulting defendants would risk inconsistent judgments.
The same risk is present even with respect to the four remaining claims for
breach of fiduciary duty, negligence, gross negligence, and promissory estoppel
(Counts X through XIII).53 Notwithstanding that these claims appear aimed at Mr.
Fisher, who is in default, entering judgment now risks logically inconsistent judgments
later, given the factual overlap—if not dependency—these claims have on the others.
For example, finding Mr. Fisher breached his fiduciary duty now based on the
Ammermans’ alleged theory that he fraudulently misappropriated their $1.126 million by
distributing it among co-conspirators, but then later entering judgment in favor of Mr.
52 See, e.g., Lytle v. Hall, No. 2:19-cv-619, 2022 U.S. Dist. LEXIS 11522, at *6–7 (D.
Utah Jan. 21, 2022) (unpublished) (concluding that entering default judgment “on
overlapping claims would unnecessarily risk inconsistent judgements and damages
awards” where the plaintiff asserted breach of contract and fraud claims arising “out of
the same transactions” and “based on concerted actions of the defaulting and non-
defaulting” defendants who could assert “closely related, if not identical,” legal
defenses); Green Oak, 2008 U.S. Dist. LEXIS 2817, at *11 (concluding the defendants
may have closely related defenses sufficient to trigger Frow’s rule where the “same
transaction and factual allegations” for the plaintiff’s conspiracy and RICO claims
“underlay many of the other claims,” making “[u]niformity of liability . . . logically
required”).
53 (Compl. ¶¶ 303–33, Doc. No. 1 (claiming Mr. Fisher breached his fiduciary duty by
“knowingly misappropriating” their money); id. ¶¶ 334–45 (claiming negligence and
gross negligence because Mr. Fisher breached his duty of care); id. ¶¶ 346–52
(claiming “promissory estoppel/detrimental reliance” based on Mr. Fisher’s false
assurances).)
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Ester and Mr. Peterson finding no conspiracy or fraud (or even an agreement to invest)
would be logically inconsistent.54 In short, entering default judgment now unnecessarily
risks inconsistent judgments and damages awards later.
RECOMMENDATION
Because the Ammermans seek damages against all defendants jointly and
severally and entering default judgment against the defaulting defendants now risks
inconsistent judgments later, the undersigned recommends the district judge deny the
motion for default judgment55 without prejudice.
54 See, e.g., Gen. Steel, 306 F.R.D. at 669 (concluding that where the plaintiff alleged
wrongful acts resulting from an agreement between the defendants, entering judgment
against defaulting defendants now but later entering judgment in favor of non-defaulting
defendants “would result in logically inconsistent judgments”); see also Neilson v.
Chang (In re First T.D. & Invest., Inc.), 253 F.3d 520, 532 (9th Cir. 2001) (extending
Frow’s rule to “similarly situated” defendants and explaining it would be “incongruous
and unfair” to allow a plaintiff to prevail against defaulting defendants on a legal theory
rejected by a court with respect to an answering defendant “in the same action”); Gulf
Coast Fans, Inc. v. Midwest Elecs. Imps., Inc., 740 F.2d 1499, 1512 (11th Cir. 1984)
(noting that when defendants are similarly situated, even if not jointly liable, judgment
should not be entered against a defaulting defendant if the other defendants prevail on
the merits); Orbit Irrigation Prods. v. Sunhills Int’l, No. 1:10-cv-113, 2015 U.S. Dist.
LEXIS 38730, at *24 (D. Utah Mar. 25, 2015) (unpublished) (declining to enter default
judgment where “risk of inconsistent verdict determinations” was present because the
plaintiff’s claims against the defendants were “so closely related”).
55 (Doc. No. 68.)
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The Ammermans have the right to object to this Report and Recommendation
within fourteen days, and failure to object may be considered a waiver of objections.56
DATED this 20th day of January, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
56 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b).
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