Williams Sports Rentals Inc.

Filing 185

STIPULATION and ORDER signed by Magistrate Judge Jeremy D. Peterson on 11/7/2023 WITHDRAWING 178 Motion to Set Aside and VACATING the 11/30/2023 Hearing. Defendants Smith and Berkeley Executives, Inc.'s answer to 92 Third-Party Complaint due by 11/17/2023. (Clemente Licea, O)

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B. OTIS FELDER (CSB No. 177628)
CSB Certified Admiralty & Maritime Law Specialist
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
525 Market Street, 17th Floor
San Francisco, California 94105-2725
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
Attorneys for Petitioner & COUNTER DEFENDANT
WILLIAMS SPORTS RENTALS, INC. (“WSR”)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IN ADMIRALTY

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IN RE: COMPLAINT AND PETITION OF
WILLIAMS SPORTS RENTALS, INC. AS
OWNER OF A CERTAIN 2004 YAMAHA
WAVERUNNER FX 140 FOR
EXONERATION FROM OR LIMITATION
OF LIABILITY

)
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MARIAN LATASHA WILLIS, on behalf of the )
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Estate of RAESHON WILLIAMS,
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Respondent/Counter Claimant,
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v.
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WILLIAMS SPORTS RENTALS, INC.,
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Petitioner/Counter Defendant.
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WILLIAMS SPORTS RENTALS, INC.,
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Petitioner, Counter Defendant, and
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Third-party Plaintiff,
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v.
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THOMAS SMITH, KAI PETRICH,
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BERKELEY EXECUTIVES, INC.,
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ZIP, INC., and DOES 1-10,
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Third-party Defendants.
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AND RELATED ACTIONS
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Case No. 2:17-cv-00653-KJM-JDP
Hon. Kimberly J. Mueller
Chief United States District Judge
STIPULATION FOR ORDER SETTING
ASIDE DEFAULTS AGAINST THIRDPARTY DEFENDANTS THOMAS SMITH
AND BERKELEY EXECUTIVES, INC.,
ACKNOWLEDGING SERVICE WITH
DEADLINE TO ANSWER ON OR BEFORE
NOV. 17, 2023
[FRCP 55(c)]

STIPULATION FOR ORDER SETTING ASIDE DEFAULT AGAINST
THOMAS SMITH & BERKELEY EXECUTIVES, INC. – Page 1
288938018v.1

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WHEREAS, Petitioner Williams Sports Rentals (WSR) commenced these admiralty

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proceedings under the Limitation of Liability Act (LOLA) 46 U.S.C. § 30529(c), and Admiralty

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Rule F(3) on March 28, 2017 (Complaint, ECF No. 1);

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WHEREAS, Petitioner and Third-Party Plaintiff WSR filed a Third-Party Complaint (TPC)

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(ECF No. 92), including its Exhibit A (Smith’s Rental Agreement with WSR) (ECF No. 92-1),

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Exhibit B (Smith’s Release and Waiver Form with WSR) (ECF No. 92-2), and Exhibit C (Smith’s

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Safety Checklist with WSR) (ECF No. 92-3) seeking indemnification and other relief against

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Third-Party Defendants Thomas Smith (Smith) and his company Berkeley Executives, Inc.

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(Berkeley) along with others, on February 18, 2020;

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WHEREAS, no claim or responsive pleading has been filed by either Smith or Berkeley,

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each having been served, and the Clerk’s entry of default against all non-appearing claimants as to

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the LOLA proceedings (ECF No. 24), entry of default against Berkeley as to WSR’s TPC (ECF No.

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106), and entry of default against Smith as to WSR’s TPC (ECF No. 169);
WHEREAS pursuant to the Court’s Minute Order (ECF No. 171), WSR moved for a default

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judgment to be entered (ECF No. 173) set for hearing for Oct. 19, 2023;

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WHEREAS Smith and Berkley generally appeared and filed a motion to set aside the

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default (ECF No. 178) contending improper service, which is set for hearing for Nov. 30, 2023; and
WHEREAS the Court continued the hearing on WSR’s motion for default judgment until

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Nov. 30, 2023 (Minute Order, ECF 179).

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COMES NOW the parties and stipulate for an Order as follows:

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1.

Pursuant to Federal Rule of Civil Procedure 55(c), which allows entry of default to

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be set aside “for good cause” and without resolving the issue of whether service was proper on

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Smith and Berkeley (see also Ford v. Artiga, 2013 WL 820146, 2013 U.S. Dist. LEXIS 47647, *8

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(E.D. Cal. 2013)), the parties stipulate, upon Court approval, to set aside the entry of default against

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Berkeley as to WSR’s TPC (ECF No. 106), and entry of default against Smith as to WSR’s TPC

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(ECF No. 169) and take off calendar WSR’s motion for default judgment and Smith and Berkeley’s

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motion to set aside the defaults;

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///
STIPULATION FOR ORDER SETTING ASIDE DEFAULT AGAINST
THOMAS SMITH & BERKELEY EXECUTIVES, INC. – Page 2
288938018v.1

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2.

Third-party Defendants Smith and Berkeley shall formally withdraw their motion

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and associated filed documents to set aside motion to set aside the default (ECF No. 178)

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contending improper service, which is set for hearing for Nov. 30, 2023.

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3.

Third-party Defendants Smith and Berkeley shall file their answer(s) to WSR’s TPC

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(ECF No. 92), or before Nov. 17, 2023, each acknowledging by their counsel signature below

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proper service having been made and each waiving any and all objections to jurisdiction,

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insufficient process, insufficient service of process, and venue in this pending matter Case No.

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2:17-cv-00653-KJM-JDP.

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So Stipulated.
Dated: October 31, 2023

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WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP

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By:
B. Otis Felder
Attorneys for Petitioner, Counter Defendant,
& Third-Party Plaintiff
WILLIAMS SPORTS RENTALS, INC.

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So Stipulated.

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Dated: October 31, 2023

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WADE LAW GROUP

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By:
Dianna L. Albini
Attorneys for Third-Party Defendants
THOMAS SMITH & BERKELEY EXECUTIVES, INC.

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STIPULATION FOR ORDER SETTING ASIDE DEFAULT AGAINST
THOMAS SMITH & BERKELEY EXECUTIVES, INC. – Page 3
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ORDER

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Pursuant to the parties’ stipulation, it is hereby ORDERED that:

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1. The Clerk of Court is directed to set aside the entry of defendants Thomas Smith and

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Berkeley Executives, Inc.’s default. See ECF Nos. 106 & 169.

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2. Defendants Smith and Berkeley Executives, Inc.’s motion to set aside entry of their
default, ECF No. 178, is deemed withdraw.

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3. The November 30, 2023 hearing on defendants Smith and Berkeley Executives, Inc.’s
motion is vacated.

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4. Defendants Smith and Berkeley Executives, Inc.’s shall file an answer to Williams
Sports Rentals third-party complaint by November 17, 2023.

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IT IS SO ORDERED.

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Dated:

November 7, 2023
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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