Board of Trustees of the Cement Masons Health and Welfare Trust Fund for Northern California et al v. C and C Concrete, Inc. et al

Filing 84

ORDER DENYING WITHOUT PREJUDICE 79 Plaintiffs' Motion for Default Judgment. Signed by Magistrate Judge Laurel Beeler on 3/18/2013.(lblc2, COURT STAFF) (Filed on 3/18/2013)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 BOARD OF TRUSTEES OF THE CEMENT MASONS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA et al., 13 Plaintiffs, No. C 10-03343 LB ORDER DENYING PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT WITHOUT PREJUDICE 14 v. [Re: ECF No. 79] 15 C AND C CONCRETE, INC., et al., 16 17 18 Defendants. _____________________________________/ On July 29, 2010, Plaintiffs – the trustees of employee benefits plans for masons and other 19 covered employees in the construction industry – filed a complaint against Defendants C and C 20 Concrete, Inc. (“C & C Concrete”) and Jose R. Herrera, Jr. (collectively, “Defendants”), for failing 21 to pay employee fringe benefits and make monthly reports in violation of the parties’ collective 22 bargaining agreement, the trust agreements, and the Employee Retirement Income Security Act 23 (“ERISA”). See Complaint, ECF No. 1 at 1-2, ¶ 1.1 24 25 After serving Defendants with the complaints and summons, Plaintiffs, on September 3, 2010, requested that the Clerk of the Court enter default against Defendants for failing to answer its 26 27 1 28 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document, not the pages at the bottom. C 10-03343 LB ORDER 1 complaint. Complaint, ECF No. 1; Proof of Service, ECF No. 4 (Herrera); Proof of Service, ECF 2 No. 5 (C & C Concrete); Request for Clerk’s Entry of Default, ECF No. 6. A few days later, the 3 Clerk of the Court entered default against Defendants. Entry of Default, ECF No. 15. On May 18, 2011, Plaintiffs filed an amended complaint. First Amended Complaint (“FAC”), 5 ECF No. 32. After serving Defendants with the amended complaint and Defendants failed to answer 6 it, Plaintiffs requested the Clerk of the Court to enter default against Defendants under the amended 7 complaint. Certificate of Services, ECF No. 34, 35; Motion for Entry of Default, ECF No. 38. On 8 August 17, 2011, the Clerk of the Court entered default against Defendants. Soon thereafter, 9 Defendants filed an answer. Answer, ECF No. 42. In response, the parties filed, and the court 10 granted, a stipulation to vacate the August 17, 2011 entry of default. Stipulation, ECF No. 44; 11 Stipulation and Order, ECF No. 45. 12 For the Northern District of California UNITED STATES DISTRICT COURT 4 Defendants were originally represented by attorney Scott Woodall. The court subsequently 13 granted Mr. Woodall’s motion to withdraw. See Order Granting Defendants’ Counsel’s Motion to 14 Withdraw, ECF No. 66 at 1. In the order, the court noted that “corporations may not appear in 15 federal court except through counsel,” see N.D. Cal. Civil Local Rule 3-9(b), and ordered C & C 16 Concrete to file a substitution of counsel by June 29, 2012. Id. at 3. After C & C Concrete failed to 17 obtain a substitute counsel, Plaintiffs asked the court to strike C & C Concrete’s2 answer to the 18 amended complaint. See Plaintiffs’ Case Management Conference Statement, ECF No. 68 at 3. A 19 few months thereafter, the court struck C & C Concrete’s answer and invited Plaintiffs to seek C & 20 C Concrete’s entry of default and to proceed with a motion for default judgment. Order Striking 21 Answer, ECF No. 74. 22 In the court’s August 2, 2012 order, the court stated, “If C & C Concrete’s answer is stricken, 23 Plaintiffs then will be permitted to apply for entry of default judgment and default judgment against 24 it.” Order to Show Cause, ECF No. 73. After stipulating to vacate the August 17, 2011 entry of 25 default, Plaintiffs did not ever request that the Clerk of the Court enter C & C Concrete’s default 26 27 28 2 On July 31, 2012, and at Plaintiffs’ request, the court dismissed Mr. Herrera from the case based on his bankruptcy discharge. See Notice of Discharge and Order, ECF No. 70. Therefore, the only Defendant left in this suit is C & C Concrete. C 10-03343 LB ORDER 2 1 again. Therefore, there is presently no entry of default against C & C Concrete. Accordingly, the 2 Court DENIES WITHOUT PREJUDICE Plaintiffs’ motion for default judgment against C & C 3 Concrete. Plaintiffs are free to refile their motion for default judgment, but only after filing a 4 request for entry of default with Clerk of the Court and receiving an entry of default. 5 6 IT IS SO ORDERED. Dated: March 18, 2013 7 _______________________________ LAUREL BEELER United States Magistrate Judge 8 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C 10-03343 LB ORDER 3

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