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Home My WebLink About992783.tiff IN THE UNITED STATES DISTRICT COURT tpr THE DISTRICT OF COLORADO UNITED STATES DISTRICTCOUR1 Judge Wiley Y. Daniel DENVER COLORADO Civil Actor No. 97 - D -2469 NOV 0 8 a ! ASPHALT PAVING CO., a Colorado Corporation, JAMt n•MHIYJYt$AER avc Plaintiff, "`° v. FREDERICK WATTENBERG, et al., Defendants. ORDER THIS MATTER is before the Court on Plaintiffs Renewed Motion for Appointment of Attorney and for Order for Entry of Judgment filed September 16, 1999. The Court has fully considered the motion, and finds that the relief requested by the Defendant is appropriate. "The [Soldiers' and Sailors' Civil Relief Act of 1940] temporarily suspends enforcement of civil liabilities against people on active duty in the military `until after the court shall have appointed an attorney to represent the defendant and protect his interest.''" United States v. Hampshire, 95 F.3d 999, 1005 (10th Cir. 1996) (citing 50 U.S.C. App. §§ 510, 520(1)). The Act establishes certain requirements that must be met before a default judgment may be entered against a member of the military. In re the Custody of Nugent, 955 P.2d 584, 588 (Colo. Ct. App. 1997). With respect to these requirements, the Act states the following: In any action or proceeding commenced in any court, if there shall be a I ^^ '' __ LL default of any appearance by the defendant, the plaintiff, before entering C '" - pc: CA 992783 I- J6-q9 judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lie-1 thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made i the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. 50 App. U.S.C. § 520(1 ). Here, the non-appearing defendants are in default. Also, the Plaintiff has filed a proper affidavit stating that it is unable to determine whether or not any of the non-appearing defendants are in the military service of the United States or its allies. Therefore, before a judgment is entered, the Court must appoint an attorney to represent all of the non-appearing defendants. Another requirement, however, that must be met before a default judgment may be entered against a member of the military is the "filing of a bond to indemnify that member in the event the judgment is set aside in whole or in part . . . ." In re the Custody of Nugent, 955 P.2d at 588. Here, there is no evidence that the Plaintiff has filed a bond to indemnify any of the non-appearing defendants in the event that the judgment is set aside in whole or in part. As a result, an entry of judgment is not proper at this time. Accordingly it is, ORDERED that Plaintiffs Renewed Motion for Appointment of Attorney and for Order for Entry of Judgment filed September 16, 1999 is GRANTED IN PART AND DENIED IN PART. It is granted insofar as it requests that an attorney be appointed to represent all nonappearing defendants. It is denied insofar as it moves for an order of entry of judgment. It is 2 FURTHER ORDERED that an attorney be appointed to represent all non- appearing defendants. The Plaintiffs shall advise the Court within 20 days of the date of this Order of the name and address of an attorney to be appointed to represent all non-appearing defendants in this matter. Dated: November 9 , 1999. BY THE COURT: Wiley Y, Daniel U.S. District Judge 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 97-D-2469 CERTIFICATE OF MAILING I hereby certify that a copy of this Order was mailed to the following on November 8, 1999: Edward Imatani Banks & Imatani, P.C. 225 Union Blvd., #310 Lakewood, CO 80228 Keith D. Tooley Welborn Sullivan Meck & Tooley, P.C. 1775 Sherman St., #180 Denver, CO 80203 William H. Southard 1025 9th Ave., #309 Greeley, CO 80631 Robert D. Clark Assistant U.S. Attorney Ron Klinefeller Western Area Power Admin. U.S. Dept of Energy P.O. Box 3402 Golden, CO 80401 Fred Wittenberg 2163 U-75 Road Cederedge, CO 81413 Brad W. Schact Otten, Johnson, Robinson, Neff & Ragonetti, P.C. DC BOX 10 K N Front Range Gathering 6353 N. 7th Ave Brighton, CO 8C601 Board of County Commissioners P.O. Box 758 Greeley, CO 80632 Beverly Van Oeveren 1130 S. 9th Ave., #107 Sterling. CO 80751 Hazel Collins P.O. Box 753 Silver Springs, NV 89429 Edward Eugene Henman 1120 Alderson Ave. Billings, MT 59102 Louise Wattenberg Brighton Care Center 2025 S. Egbert Brighton, CO 80601 James Wattenberg 12230 Levi Circle Henderson, CO 80640 Florence Conter 14600 E. 136th Ave. Brighton, CO 80601 Robert Wattenberg 12421 Racine Henderson, CO 80640 Mary Ledford 981 Dakin St. Denver, CO 80221 • Donald Paul Wattenberg Box 39765 Ninilchik, AK 99639 Helen Lewis 14390 E. Marina Dr., #406 Aurora, CO 80014 Gene Perry 87 Swan Ave Worchester, MA 01602 E. L. Wattenberg 200 N. 35th Ave., #181 Greeley, CO 80631 Randy Wattenberg 3680 E. 133rd Circle Thornton, CO 80241 John Wattenberg 247 S. 3rd Ave. Brighton, CO 80(301 Public Service Co. 1225 17th St. Denver, CO 80202 Donna Routzen 13525 WCR #8 Ft. Lupton, CO 80621 Martin George Schmidt 294 S. 22nd Ave. Brighton, CO 80601 Brighton Ditch Co. 11553 WCR 6 Brighton, CO 80601 Edward Imatani Banks & Nmatani, P.C. 1200 17th St., #1310 Denver, CO 80202 Max A Minnig, Jr. Max A Minnig, Jr. & Associates, LLC 820 16th St., #704 Denver, CO 80202 Hello