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

Filing 72

ORDER TO SHOW CAUSE Order to Show Cause Hearing set for 9/20/2012 11:00 PM. Show Cause Response due by 9/13/2012. Mr. Woodall to serve Defendants.. Signed by Judge Beeler on 08/02/2012. (JUDGE BEELER, COURT STAFF) (Filed on 8/2/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division

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For the Northern District of California

UNITED STATES DISTRICT COURT

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BOARD OF TRUSTEES OF THE CEMENT
MASONS HEALTH AND WELFARE
TRUST FUND FOR NORTHERN
CALIFORNIA et al.,

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Plaintiffs,

No. C 10-03344 LB
ORDER TO SHOW CAUSE AND
SETTING FURTHER CASE
MANAGEMENT CONFERENCE

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v.
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C AND C CONCRETE, INC., et al.,
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Defendants.
_____________________________________/
On July 29, 2010, Plaintiffs – the trustees of employee benefits plans for masons and other

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covered employees in the construction industry – filed a complaint against Defendants C and C

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Concrete, Inc. (“C and C Concrete”) and Jose R. Herrera, Jr. (collectively, “Defendants”), for failing

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to pay employee fringe benefits and make monthly reports in violation of the parties’ collective

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bargaining agreement, the trust agreements, and the Employee Retirement Income Security Act

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(“ERISA”). See Complaint, ECF No. 1 at 1-2, ¶ 1.1

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Defendants were represented by attorney Scott Woodall. The court subsequently granted Mr.

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Woodall’s motion to withdraw. See Order Granting Defendants’ Counsel’s Motion to Withdraw,

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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 10-03344 LB
ORDER

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ECF No. 65 at 1. In the order, the court noted that “corporations may not appear in federal court

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except through counsel,” see N.D. Cal. Civil Local Rule 3-9(b), and ordered C and C Concrete to

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file a substitution of counsel by June 29, 2012. Id. at 3. It also ordered Mr. Herrera to file either a

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notice of his intention to proceed pro se or a substitution of counsel by June 29, 2012. Id. Neither C

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and C Concrete nor Mr. Herrera filed anything.

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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. 69.

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The court previously ordered C & C Concrete to appear in court on August 2, 2012, at 11:00

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a.m., to show cause why it failed to file a substitution of counsel. Order to Show Cause, ECF No. 66

26, 2012. Id. C & C Concrete did not file a response or appear in court as ordered on August 2,

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For the Northern District of California

at 2. It also ordered C & C Concrete to file a written response to the Order to Show Cause by July

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UNITED STATES DISTRICT COURT

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2012. Plaintiffs appeared through counsel

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Plaintiffs thus have asked the court to strike Defendant C & C Concrete’s Answer to the First

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Amended Complaint, thus allowing Plaintiffs to proceed in default against C & C Concrete. See

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Plaintiffs’ Case Management Conference Statement, ECF No. 67 at 3.

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Accordingly, no later than September 20, 2012 at 11 a.m., Defendant C & C Concrete shall show

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cause why its answer to the First Amended Complaint should not be stricken. If C & C Concrete’s

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answer is stricken, Plaintiffs then will be permitted to apply for entry of default judgment and

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default judgment against it.

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Although C & C Concrete may not appear except through counsel, for the limited purpose of

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responding to this order to show cause, C & C Concrete may submit the declaration of an authorized

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representative setting forth any efforts it has made to obtain counsel, and any reasons it may have

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that its answer should not be stricken. That must be filed by September 13, 2012. In the event that

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counsel for C & C Concrete enters an appearance on or before September 20, 2012, this order to

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show cause will be discharged automatically.

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Pursuant to the order permitting Mr. Woodall’s withdrawal and requiring him to continue to

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serve on Defendants all papers in this case, service of this order on Mr. Woodall shall constitute

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service on C & C Concrete, and Mr. Woodall shall make all reasonable efforts to ensure that C & C
C 10-03344 LB
ORDER

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Concrete receives actual notice of this order as promptly as possible. See Order, ECF No. 65 at 3

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(under circumstances of this case, particularly with regard to C & C Concrete, which cannot appear

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except through counsel, Mr. Woodall must serve on Defendants all papers until a substitution of

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counsel is filed).

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The court sets a further hearing for September 20, 2012, at 11 a.m.

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IT IS SO ORDERED.

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Dated: August 2, 2012

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_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 10-03344 LB
ORDER

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