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 83

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)

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
LABORERS HEALTH AND WELFARE
TRUST FUND FOR NORTHERN
CALIFORNIA et al.,

13

No. C 10-03344 LB
ORDER DENYING PLAINTIFFS’
MOTION FOR DEFAULT
JUDGMENT WITHOUT PREJUDICE

Plaintiffs,
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 laborers 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

After filing a complaint and serving the Defendants, the Plaintiffs, on September 3, 2010,

25

requested that the Clerk of the Court enter default against the 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 10-03344 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 the Defendants. Entry of Default, ECF No. 9.
On May 18, 2011, Plaintiffs filed an amended complaint. First Amended Complaint

5

(“FAC”), ECF No. 32. After serving Defendants with the amended complaint and Defendants failed

6

to answer it, Plaintiffs requested the Clerk of the Court to enter default against Defendants under the

7

amended complaint. Certificate of Services, ECF No. 34, 35; Motion for Entry of Default, ECF No.

8

38. On 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. Order Granting Defendants’ Counsel’s Motion to

14

Withdraw, ECF No. 65 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. 67 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. 72. 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. 69. Therefore, the
only Defendant left in this suit is C & C Concrete.
C 10-03344 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
_______________________________
LAUREL BEELER
United States Magistrate Judge

7
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 10-03344 LB
ORDER

3