SureTec Insurance Company v. BRC Construction, Inc. et al

Filing 43

ORDER signed by Judge Kimberly J. Mueller on 12/16/2014 ORDERING 40 The court discharged its order to show cause and directed plaintiff to file any renewed motion for default judgment no later than 7/31/2014. ECF No. [ 42 ]; Plaintiff has not filed a renewed motion. 22 ; As plaintiff has elected not to proceed further with its request for fees, the court hereby REINSTATES the default judgment in the amount of $413,255.56 in damages, originally entered on 7/30/2012 against BRC Construction, Inc., and Barry Dean Patrick and directs the Clerk of the Court to enter this default and close the case. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SURETEC INSURANCE COMPANY,

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No. 2: 11-cv-2813 KJM AC

Plaintiff,
v.

ORDER

BRC CONSTRUCTION, INC., et al.,

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Defendants.

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On October 24, 2011, Suretec Insurance Company (“plaintiff” or “Suretec”) filed

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suit against BRC Construction (“BRC”) and Barry Dean Patrick (“Patrick”) asserting four causes

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of action stemming from the breach of an indemnity agreement: (1) breach of contract; (2) quia

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timet; (3) specific performance of indemnity; and (4) declaratory relief. ECF No. 1.
On January 24, 2012, the clerk entered default against BRC on plaintiff’s request.

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ECF Nos. 7-9.
On March 7, 2012, the court granted plaintiff’s request to serve Patrick by
publication and to extend the time to complete service. ECF Nos. 10-11, 14.
On May 8, 2012, plaintiff filed a request for an entry of default as to Patrick and
the clerk entered the default the following day. ECF Nos. 16-17.

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On July 26, 2012, plaintiff filed an application for the clerk’s entry of default

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judgment against defendants. ECF No. 20. The clerk declined, as the application included a
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request for attorneys’ fees, and informed counsel to file a new application and a separate motion

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for attorneys’ fees. ECF Nos. 20, 21.

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On July 27, 2012, plaintiff filed an application for the clerk to enter a default

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judgment in the amount of $413,255.56; the clerk entered the judgment on July 30, 2012. ECF

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Nos. 22-23.

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Thereafter plaintiff filed a motion for attorneys’ fees, which the court denied

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without prejudice, stating the request for fees should have been included with a motion for a

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default judgment. ECF Nos. 24, 27.

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Plaintiff filed a motion for default judgment on May 3, 2013. ECF No. 31. On

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June 13, 2013, the magistrate judge recommended that the default judgment be modified to award

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plaintiff $413,255.56 in damages and $92,729.11 in attorney’s fees and costs. ECF No. 36.

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On August 30, 2013, this court declined to adopt the findings and

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recommendations but permitted counsel to provide supplemental justification for the request for

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fees and costs. ECF No. 37.

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On September 18, 2013, plaintiff submitted additional information, claiming fees
from 2009 through 2013, supported by over a hundred pages of billing records. ECF No. 38.

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On November 27, 2013, the court rejected plaintiff’s request for fees and denied
the amended motion for default judgment without prejudice. ECF No. 39.

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On May 8, 2014, the court issued an order to show cause, asking plaintiff to
explain why the court should not dismiss the case for failure to prosecute. ECF No. 40.

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On May 12, 2014, plaintiff filed a declaration saying it was not going to pursue its

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request for attorneys’ fees but will proceed on the original default judgment entered by the Clerk

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on July 30, 2012. ECF No. 41.

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The court discharged its order to show cause and directed plaintiff to file any

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renewed motion for default judgment no later than July 31, 2014. ECF No. 42. Plaintiff has not

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filed a renewed motion.

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/////

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As plaintiff has elected not to proceed further with its request for fees, the court

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hereby reinstates the default judgment in the amount of $413,255.56 in damages, originally

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entered on July 30, 2012 against BRC Construction, Inc., and Barry Dean Patrick and directs the

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Clerk of the Court to enter this default and close the case.

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IT IS SO ORDERED.
DATED: December 16, 2014.

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UNITED STATES DISTRICT JUDGE

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