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HomeMy WebLinkAbout2021CV30426 - City Of Fort Collins V. Aaron Million, Jordan Fox-Million; Million Agricultural Investments, Ltd., Arlo Richardson Aka Arlo Lee Richardson; The Pleasant Valley And Lake Canal Ditch Company - 044 - Motion Entry Of Default1 District Court, Larimer County, Colorado 201 Laporte Avenue, Suite 100 Fort Collins, Colorado 80521 (970) 494-3500 Court Use Only Plaintiff: CITY OF FORT COLLINS, a Colorado home rule municipality, v. Defendants: AARON MILLION a/k/a AARON P. MILLION; JORDAN FOX-MILLION; MILLION AGRICULTURAL INVESTMENTS, LTD., a Colorado limited partnership; ARLO RICHARDSON a/k/a ARLO LEE RICHARDSON; THE PLEASANT VALLEY AND LAKE CANAL DITCH COMPANY; FOX-MILLION FARMS, LLC, a Colorado limited liability company; and ALL UNKNOWN PERSONS WHO CLAIM AN INTEREST IN THE SUBJECT MATTER OF THIS ACTION. Attorneys for Plaintiff Peter J. Dauster (#37139) Daniel M. St. John II (#46653) Johnson Muffly & Dauster, PC 323 South College Avenue, Suite 1 Fort Collins, Colorado 80524 Telephone: 970-482-4846; FAX: 970-482-3038 pdauster@nocolawgroup.com dstjohn@nocolawgroup.com Ingrid E. Decker (#28594) Senior Assistant City Attorney Fort Collins City Attorney’s Office 300 LaPorte Ave. Fort Collins, Colorado 80521 Telephone: 970-416-2553 Email: idecker@fcgov.com Case No. 21CV30426 Courtroom: 5B MOTION FOR ENTRY OF DEFAULT AGAINST FOX-MILLION FARMS, LLC Plaintiff City of Fort Collins files this motion for entry of default against Fox-Million Farms, LLC under C.R.C.P. 55(a) as follows: DATE FILED: March 4, 2022 4:56 PM FILING ID: 2BAA69161A3A5 CASE NUMBER: 2021CV30426 2 I BACKGROUND 1. The City filed its first amended complaint on January 11, 2022 (“Amended Complaint”). The Amended Complaint requested relief against numerous defendants, including Fox-Million Farms, LLC (“Fox-Million Farms). 2. The return of service filed on January 13, 2022, indicates that Fox-Million Farms was served with process on January 12, 2022, through its registered agent in Colorado Springs, Colorado. 3. Fox-Million Farms’ response date to the complaint was February 2, 2022. See C.R.C.P. 12(a)(1). 4. Fox-Million Farms has failed to file a responsive pleading within 21 days of service. 5. Further, at the January 3, 2022, initial case management conference, the Court addressed the requirement under Colorado law that entity litigants generally must be represented by an attorney. The Court ordered that Million Agricultural Investments, Ltd. retain counsel within 30 days of the initial case management conference. II. LAW 6. C.R.C.P. 55(a) provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter [its] default.” 7. A limited liability company “cannot appear or act in a judicial proceeding in person, but must be represented by a licensed attorney.” Weston v. T&T, LLC, 271 P.3d 552, 556-57 (Colo. App. 2011) (quoting (Keller Corp. v. Kelley, 187 P.3d 1133, 1136 (Colo. App. 2008)). However, C.R.S. section 13-1-127(2) provides a limited exception for closely-held entities. Weston, 271 P.3d at 557. 8. C.R.S. section 13-1-127(2) allows a closely-held entity to be represented by an officer of the entity if “[t]he amount at issue in the controversy or matter before the court or agency does not exceed fifteen thousand dollars, exclusive of costs, interest, or statutory penalties, on and after August 7, 2013” and the office provides evidence to the Court that the officer is authorized to act on behalf of the entity within the jurisdictional limits of the statute. A closely-held entity is one that has no more than three owners. See C.R.S. § 13-1-127(1)(a). III. ARGUMENT 9. Fox-Million Farms was properly served with process at its registered agent in Colorado. 10. Fox-Million Farms has filed no responsive pleading at all to the City’s Amended Complaint. Fox-Million Farms was served with process more than 50 days prior to this motion. 11. No attorney has filed an entry of appearance with the Court on behalf of Fox-Million Farms. 3 12. A representative of Fox-Million Farms did not appear at the February 22, 2022 case management conference. Fox-Million Farms has provided no indication to the Court that it intends to participate in this case. 13. Accordingly, entering default under C.R.C.P. 55(a) against Fox-Million Farms is appropriate. IV. CONCLUSION 14. For the reasons set forth above, the City requests that the Court enter default against defendant Fox-Million Farms, LLC under C.R.C.P. 55(a) DATED this 4th day of March 2022. JOHNSON MUFFLY & DAUSTER, PC /s/Daniel M. St. John II* Peter J. Dauster (#37139) Daniel M. St. John II (#46653) Attorneys for City of Fort Collins FORT COLLINS CITY ATTORNEY’S OFFICE /s/Ingrid E. Decker * Ingrid E. Decker (#28594) Senior Assistant City Attorney Attorneys for City of Fort Collins 4 CERTIFICATE OF SERVICE THIS IS TO CERTIFY that on this 4th day of March 2022, a true and correct copy of the above and foregoing MOTION FOR ENTRY OF DEFAULT AGAINST FOX-MILLION FARMS, LLC was served as follows: Ingrid Decker City Attorney’s Office 300 LaPorte Avenue Fort Collins, Colorado 80522 Co-Counsel for Plaintiff Via CCE Aaron Million 1436 West Oak Fort Collins, Colorado 80521 Via U.S. Mail and email to million_1@hotmail.com Million Agricultural Investments, Ltd. 1436 West Oak Fort Collins, Colorado 80521 Via U.S. Mail Jeffrey J. Kahn Lyons Gaddis, P.C. 515 Kimbark Street, 2nd Floor PO Box 978 Longmont, Colorado 80502 Counsel for Defendant Pleasant Valley and Lake Canal Company Via CCE Jordan Fox-Million 3172 Stargazer Court Fort Collins, Colorado 80521 Via U.S. Mail and email to jordanfoxmillion@gmail.com Fox-Million Farms, LLC 1155 Kelly Johnson Blvd., Suite 111 Colorado Springs, Colorado 80920 Via U.S. Mail /s/ Mariana Walters* For Johnson Muffly & Dauster, PC *ELECTRONICALLY FILED: Original signatures maintained pursuant to C.R.C.P. 121 Sec. 1-26 at the offices of Johnson Muffly & Dauster PC and available for inspection by the Court and other parties upon request.