Walters et al v. Golden Gate Crane & Rigging, Inc.

Filing 151

ORDER re 149 Plaintiffs' Request for Reconsideration of January 3, 2012 Order. Signed by Magistrate Judge Donna M. Ryu on 01/06/2012. (dmrlc1, COURT STAFF) (Filed on 1/6/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEN WALTERS, et al.,

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For the Northern District of California

United States District Court

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Plaintiffs,

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v.

No. C-06-01906 WHA (DMR)
Consolidated with
No. C-06-05396 WHA (DMR)

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GOLDEN GATE CRANE & RIGGING, INC.,

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Defendant.
___________________________________/

ORDER RE PLAINTIFFS’ REQUEST
FOR RECONSIDERATION OF
JANUARY 3, 2012 ORDER

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KEN WALTERS, et al.,

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Plaintiffs,

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v.
GOLDEN GATE CRANE & RIGGING, INC.,
ROBERT NEWBERRY, SUE NEWBERRY,
et al.
Defendants.
___________________________________/

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The court is in receipt of Plaintiffs’ January 4, 2012 letter requesting reconsideration by the
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court of its January 3, 2012 Order directing Plaintiffs to personally serve the court’s December 7,
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2011 Order setting a debtor’s examination of Robert Newberry, as an officer of Judgment Debtor
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Golden Gate Crane & Rigging and in his personal capacity, on Defendants. [Docket Nos. 149 (Case
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No. 06-1906); Docket No. 111 (Case No. 06-5396) (“Jan. 4, 2012 Letter”).]
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Plaintiffs submitted an email that appears to indicate an agreement that Defendants would

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accept service of all further documents by mail. (Exh. A to Jan. 4, 2012 Letter.) However, Plaintiffs

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have previously represented to the court that Defendants are no longer represented by counsel.

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[Docket No. 138 (Case No. 06-1906).]

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In order to enforce a money judgment by writ of execution, the procedure on execution

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“must accord with the procedure of the state where the court is located.” Fed. R. Civ. P. 69(a)(1).

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In California, an order for the examination of a judgment debtor must be “personally serve[d] . . . on

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the judgment debtor not less than 10 days before the date set for the examination. Service shall be

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made in the manner specified in [California Code of Civil Procedure] Section 415.10 . . . .” Cal.

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For the Northern District of California

United States District Court

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Code Civ. Proc. § 708.110(d) (emphasis added).
In this case, it is unclear whether a prior agreement of the parties to accept service by mail

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changes the requirements of California Code of Civil Procedure section 708.110(d). Further, given

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that Defendants are no longer represented by counsel and Robert Newberry is proceeding pro se, the

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most prudent course to effectuate proper enforcement of the writ of execution is to require strict

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compliance with the personal service requirement of section 708.110(d). Accordingly, the court

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VACATES the currently scheduled date of January 18, 2012 for the debtor’s examination. By no

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later than January 13, 2012, Plaintiffs shall submit a proposed scheduling order for a judgment

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debtor examination to take place on a new date of their choosing that is in accordance with the

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court’s scheduling of such examinations and that will permit personal service of the Order setting

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the debtor’s examination to be effected on Defendants.

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IT IS SO ORDERED.

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Dated: January 6, 2012

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DONNA M. RYU
United States Magistrate Judge

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