                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                October 30, 2007
                                                     Elisabeth A. Shumaker
                          FO R TH E TENTH CIRCUIT        Clerk of Court



    STER LIN G CO N SU LTIN G
    CORPO RATION, a Colorado
    corporation,

                Plaintiff-Appellant,

    v.                                                 No. 07-1019
                                                (D.C. No. 05-cv-1573-CB S)
    CREDIT M ANA GERS                                   (D . Colo.)
    A SSO CIA TIO N O F C ALIFO RNIA,
    doing business as CM A Business
    Credit Services, a California nonprofit
    corporation; IND IAN M OTO RCY CLE
    COM PA NY, a Delaware corporation,
    IM COA LIC EN SIN G A ME RICA,
    IN C., a Delaw are corporation; IM COA
    HOLDIN GS AM ERICA, IN C.,
    a Delaware corporation,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M cCO NNELL and GORSUCH, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Sterling Consulting Corporation appeals the district court’s denials of its

motion to strike the answer and other filings of Credit M anagers Association of

California (CM A) and motion for default against CM A and other defendants. W e

have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM .

      Facing financial difficulties, assignors Indian M otorcycle Company,

IM COA Licensing America, Inc., and IM COA Holdings America, Inc.

(collectively, the Indian Entities), executed General Assignments for the benefit

of their creditors in favor of CM A. The assignments transferred all of the Indian

Entities’ property, including their rights and obligations under a certain settlement

agreement and indemnification agreement with Sterling. Sterling subsequently

came to believe that these agreements had been breached. In August 2005, it

brought a declaratory judgment action against CM A and the Indian Entities.

      Sterling requested CM A waive service and accept process, and it served

each of the Indian Entities with process. CM A waived service and accepted

process in its capacity “as Assignee under an Assignment for Benefit of

Creditors.” Aplt. App. at 127. Also “as Assignee,” it accepted service for the

Indian Entities. Aplee. Supp. App. at 196, 198, 200. In November 2005, CM A

answered the complaint in its capacity as assignee. The Indian Entities never

filed responsive pleadings on their own behalf.

      In September 2006, Sterling moved to strike CM A’s answer and subsequent

filings and moved for default against the Indian Entities and CM A in “its

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individual corporate capacity.” 1 Aplt. App. at 151. It argued that CM A “as

assignee” was not a separate entity capable of being sued and that Sterling in fact

had sued CM A in its own capacity, not as an assignee. It further argued that the

Indian Entities had not responded to the complaint and that CM A had no legal

ability to conduct litigation for the Indian Entities. The district court, through the

magistrate judge acting by consent of the parties under 28 U.S.C. § 636(c), denied

Sterling’s motions and granted summary judgment to CM A. Sterling appeals only

the denials of the motion to strike and the motion for default.

                                   M otion to Strike

      Sterling argues that CM A as assignee was not named or served in this case,

and that it simply has participated improperly without intervening. W e review the

district court’s decision on Sterling’s motion to strike for abuse of discretion. See

Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1377 (10th Cir. 1996). A

district court abuses its discretion when it issues an “arbitrary, capricious,

whimsical, or manifestly unreasonable judgement.” Coletti v. Cudd Pressure

Control, 165 F.3d 767, 777 (10th Cir. 1999) (quotation omitted). In addition, “a

decision based on an erroneous view of the law is an abuse of discretion.” Dennis

Garberg & Assocs. v. Pack-Tech Int’l Corp., 115 F.3d 767, 771 (10th Cir. 1997).



1
       Sterling notes that the term “individual corporate capacity” was used in the
district court to distinguish CM A itself from CM A acting in another capacity,
such as assignee. Like Sterling, “[e]ven though the word ‘individual’ is peculiar
in this context,” we shall use the term “for continuity.” Aplt. Br. at 7 n.3.

                                          -3-
      The district court did not abuse its discretion in denying Sterling’s motion

to strike. First, the motion was untimely. Federal Rule of Civil Procedure 12(f)

allows twenty days for a motion to strike, yet Sterling’s motion was filed ten

months after CM A’s answ er. W hen questioned by the district court, Sterling did

not offer any convincing explanation for the delay. Supp. Aplee. App. at 259-62.

Second, Sterling’s argument that CM A as assignee was never served and was not

a party is unpersuasive. CM A’s capacity was not listed in the caption. It clearly

accepted service in its capacity as assignee, Aplt. App. at 127, and it answered as

assignee, id. at 129, 130. By letter dated January 31, 2006, CM A’s counsel

informed Sterling’s counsel that he represented CM A only in its capacity as

assignee and that he had accepted service only on behalf of CM A as assignee.

Aplee. Supp. App. at 204. He stated, “[i]f in fact Sterling intended to sue CM A

all along (and not the Assignee), please inform me immediately so that the

Assignee can withdraw its appearance and you can proceed with serving CM A.”

Id. at 206. Sterling apparently did not take any further action on the issue until it

filed its motion to strike eight months later. The district court’s denial of the

motion to strike was neither arbitrary, capricious, whimsical, or manifestly

unreasonable, nor did it constitute legal error.

                                  M otion for D efault

      Sterling also argues that the district court should have granted it a default

judgment against CM A in its individual corporate capacity and against the Indian

                                          -4-
Entities because CM A appeared only as assignee and the Indian Entities never

appeared at all. W e review the district court’s decision to deny a motion for

default for abuse of discretion, Dennis Garberg & Assocs., 115 F.3d at 771, but

we review the district court’s determination of the underlying legal questions de

novo, cf. King v. PA Consulting Group, Inc., 485 F.3d 577, 592 (10th Cir. 2007)

(holding that an attorney-fee determination is reviewed for abuse of discretion,

but underlying legal principles are reviewed de novo).

      The district court denied the motion for default on the ground that CM A in

its individual corporate capacity was not a party to the litigation. It also held

that, under California law, CM A as assignee was the legal representative of the

Indian Entities with regard to property subject to the assignment. See Credit

M anagers Assoc. of S. Cal. v. Nat’l Indep. Bus. Alliance, 162 Cal. App. 3d 1166,

1171-72 (Cal. Ct. App. 1984). These determinations were not legally incorrect or

otherwise an abuse of discretion.

      As discussed above, when CM A accepted service, it did so “as Assignee

under an Assignment for Benefit of Creditors.” Aplt. App. at 127. CM A never

accepted service in its individual corporate capacity, as distinguished from its

capacity as an assignee, and Sterling never served process on CM A in its

individual corporate capacity. Thus, the district court correctly determined that

CM A in its individual corporate capacity was not a party to the law suit.




                                          -5-
      M oreover, California law permits an assignee to act on behalf of an

assignor in litigation. In Credit M anagers Association, the California Court of

Appeal held that the trial court erred in refusing the assignee’s request to vacate a

default judgment against the assignor, so that the assignee could defend the case.

162 Cal. App. 3d at 1173. “An assignee or grantee is a legal representative of the

assignor or grantor in regard to the thing assigned or granted. . . . After

transferring his entire interest in the subject of the controversy, the defendant was

only nominally a party to the action. The real parties in interest w ere his

grantees.” Id. at 1172 (quotations omitted). “Plaintiff-assignee was the ‘legal

representative’ of the assignor and as trustee for all the creditors, was charged

with the duty to defend the property in its hands against all unjust adverse

claims.” Id. Because their legal representative appeared and defended the

law suit, the Indian Entities were not in default.

      Sterling argues that it may bring claims against an assignor if it so chooses.

Its complaint, however, focused on defendants’ failures to require a third party to

adopt the settlement agreement and indemnification agreement, which w ere

among the things assigned to CM A. The district court appropriately construed the

claim as directed toward the real party in interest, CM A as assignee.




                                           -6-
                           Conclusion

The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Deanell Reece Tacha
                                          Chief Circuit Judge




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