Crosthwaite et al v. A Better Sacramento Valley Crane Service et al

Filing 27

ORDER by Judge Samuel Conti granting in part and denying in part 12 Motion for Default Judgment (sclc1, COURT STAFF) (Filed on 5/5/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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GIL CROSTHWAITE, et al.,

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Plaintiffs,

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v.

For the Northern District of California

United States District Court

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A BETTER SACRAMENTO VALLEY CRANE
SERVICE, and TIMOTHY GARY BALIEL,

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Defendants.

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I.

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Case No. 10-4589 SC
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFFS'
MOTION FOR DEFAULT JUDGMENT

INTRODUCTION
Before the Court is an unopposed Motion for Default Judgment

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by Plaintiffs Gil Crosthwaite, et al. ("Plaintiffs").

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("Mot.").

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DENIES IN PART Plaintiffs' Motion.

ECF No. 12

For the following reasons, the Court GRANTS IN PART and

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II.

BACKGROUND
Plaintiffs allege to be employee benefit plans, as defined by

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section 3(3) of the Employee Retirement Income Security Act of 1974

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("ERISA"), and their fiduciaries.

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Plaintiffs assert that Defendant A Better Sacramento Valley Crane

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Service ("Crane") is an employer under ERISA § 3(5), and that

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Defendant Timothy Gary Baliel ("Baliel") (collectively,

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"Defendants") is the guarantor of Plaintiffs' benefit claim and a

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principal shareholder of Crane.

ECF No. 1 ("Compl.").

Id.

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On October 12, 2010, Plaintiffs commenced this action to

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compel to submit to an audit pursuant to a bargaining agreement and

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ERISA § 502(g)(2)(A).

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several written demands on Defendants to schedule an audit and

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provide records for examination pursuant to the collective

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bargaining agreement, but that Defendants have refused to provide

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the necessary records.

Id.

Defendants failed to file a timely answer to the Complaint,

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Plaintiffs allege that they have made

Id.

and on November 30, 2010, the Clerk of the Court entered default as

United States District Court

For the Northern District of California

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to both Defendants.

ECF No. 7.

On February 18, 2011, Plaintiffs

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filed the current Motion.

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it, Plaintiffs seek a judgment ordering Defendants to produce all

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payroll registers and time cards for the period from January 1,

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2007 through June 30, 2010, as well as quarterly tax reports for

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2007-10.

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$4,326 in attorneys' fees and costs and "any contributions due and

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owing and under the terms of the Collective Bargaining Agreement

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and Trust Agreements . . .

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in the alternative, liquidated damages.

In it and the Proposed Order filed with

ECF No. 16 ("Pls.' Prop. Order").

pursuant to the completed audit," or,
Id.

Defendants did not file an opposition.

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Plaintiffs also seek

Rather, on April 14,

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2011, more than four months after it was due, Baliel, acting pro

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se, filed an Answer.

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Baliel purports to answer for both himself and on behalf of Crane.

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Id.

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Baliel is Plaintiffs' guarantor, but alleges that Defendants have

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"supplied all required documents as requested by auditor."

ECF No. 22 ("Answer").

In this document,

Baliel affirms that Crane is an employer under ERISA and that

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Id. ¶¶

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3, 11, 14-18.

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III. LEGAL STANDARD
After entry of a default, the Court may enter a default

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judgment.

Fed. R. Civ. P. 55(b)(2).

Its decision whether to do

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so, while "discretionary," Aldabe v. Aldabe, 616 F.2d 1089, 1092

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(9th Cir. 1980), is guided by several factors.

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matter, the Court must "assess the adequacy of the service of

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process on the party against whom default is requested."

As a preliminary

Bd. of

United States District Court

For the Northern District of California

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Trs. of the N. Cal. Sheet Metal Workers v. Peters, No. 00-0395,

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2000 U.S. Dist. LEXIS 19065, at *2 (N.D. Cal. Jan. 2, 2001).

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the Court determines that service was sufficient, it should

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consider whether the following factors support the entry of default

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judgment: (1) the possibility of prejudice to the plaintiff; (2)

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the merits of plaintiff's substantive claim; (3) the sufficiency of

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the complaint; (4) the sum of money at stake in the action; (5) the

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possibility of a dispute concerning material facts; (6) whether the

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default was due to excusable neglect; and (7) the strong policy

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underlying the Federal Rules of Civil Procedure favoring decisions

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on the merits.

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1986).

If

Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.

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Plaintiffs ask the Court to strike Baliel's Answer as untimely
and in violation of this district's Civil Local Rules. ECF No. 23
("Pls.' Resp.") ¶ 7. A defendant must serve its answer within
twenty-one days of service of the summons and complaint. Fed. R.
Civ. P. 12(a). Under Civil Local Rule 3-9(b), "[a] corporation,
unincorporated association, partnership or other such entity may
appear only through a member of the bar of this Court." Baliel's
Answer was filed more than four months late, long after a default
had been entered, and without leave of the Court. Furthermore,
because Baliel is not a member of the bar of this Court, the Answer
is inoperative as to Crane. As such, the Court STRIKES the Answer.
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IV.

DISCUSSION

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A.

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Federal Rule of Civil Procedure 4(e) provides: "[A]n

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individual -- other than a minor, an incompetent person, or a

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person whose waiver has been filed -- may be served in a judicial

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district of the United States by . . . delivering a copy of the

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summons and of the complaint to the individual personally."

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R. Civ. P. 4(3).

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other unincorporated association may be served by delivering a copy

Service of Process

Fed.

Under Rule 4(h), a corporation, partnership, or

United States District Court

For the Northern District of California

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of the summons and of the complaint to an "officer, a managing or

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general agent, or any other agent authorized by appointment or by

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law to receive service of process and -- if the agent is one

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authorized by statute and the statute so requires -- by also

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mailing a copy of each to the defendant."

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4(h)(1)(B).

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Fed. R. Civ. P.

Here, the process server declares that the summons was

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personally served on Baliel on October 29, 2010.

ECF No. 5 ("Proof

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of Service").

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by law to accept service on behalf of Crane.

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server does not state under which law Baliel was so designated, and

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so it is unclear whether Plaintiffs were required by law to mail

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the summons.

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the papers submitted in support of Plaintiffs' Motion make it clear

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that Baliel and Crane had notice of this action.

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Court finds service of process on Crane and Baliel to be adequate.

In addition, he declares that Baliel was designated
Id.

The process

However, Baliel's attempted filing of his Answer and

As such, the

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B.

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"The general rule of law is that upon default the factual

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Default Judgment

allegations of the complaint, except those relating to the amount

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of damages, will be taken as true."

Geddes v. United Fin. Group,

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559 F.2d 557, 560 (9th Cir. 1977).

Therefore, the Court accepts as

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true the facts as presented in the Complaint: that under ERISA,

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Plaintiffs are employee benefit plans, Crane is an employer, and

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Baliel is Plaintiffs' guarantor, and that Defendants have refused

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to provide Plaintiffs with documents necessary to determine if

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contributions are due under the bargaining agreement.
In light of the facts pleaded, the Court finds that the Eitel

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factors favor default judgment.

Plaintiffs would suffer prejudice

United States District Court

For the Northern District of California

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if the Court denied the Motion, as they would lack a mechanism for

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determining what they are owed under the benefit plan.

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also

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strong.

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Plan and Trust v. Siemens Bldg. Tech. Inc., 228 F.3d 964, 964 (9th

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Cir. 2000) (affirming district court's entry of judgment for ERISA

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plaintiffs who commenced action to compel audit of employer).

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finds

For

the

merits

of

Plaintiffs'

substantive

The Court

claim

to

be

See Plumber, Steamfitter and Shipfitter Indus. Pension

these

reasons,

the

Court

ORDERS

Defendants

Crane

and

Baliel to provide the following documents to Plaintiffs within
thirty (30) days of the date of this Order, for the purpose of
completing

an

audit

of

Defendants'

records

for

the

period

of

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January 1, 2007 through June 30, 2010:
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1.

All payroll registers covering the period January 1, 2007

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through June 30, 2010.
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2.

All

time

cards

covering

the

period

January

1,

2007

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through June 30, 2010.
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3.

Quarterly Tax Reports: Form DE-6 for 2007, 2008, 2009 and
the First and Second Quarters of 2010.

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C.

Attorneys' Fees, Costs, and Contributions Due

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Plaintiffs seek $4,326 in attorneys' fees and costs.

See

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Prop. Order.

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Therefore, the Court DENIES this portion of Plaintiffs' Motion.

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Should Plaintiffs opt to pursue attorneys' fees and costs, they

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must file a declaration accounting for the requested attorney fees

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and costs within fourteen (14) days of this Order.

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and consideration of this declaration, the Court will enter

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judgment in an appropriate amount in favor of Plaintiff and against

United States District Court

For the Northern District of California

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Plaintiffs submit no evidence to support this amount.

Upon receipt

Defendant.
Plaintiffs also seek "any contributions due and owing and

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under the terms of the Collective Bargaining Agreement and Trust

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Agreements . . .

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alternative, liquidated damages.

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premature.

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have failed to make required contributions; rather, they allege

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that an audit is needed to determine if Defendants did so fail.

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such, the Court DENIES this portion of Plaintiffs' Motion.

pursuant to the completed audit," or, in the
See Prop. Order.

This request is

Plaintiffs do not allege, at this time, that Defendants

As

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V.

CONCLUSION
For the foregoing reasons, Plaintiffs' Motion for Default

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Judgment is GRANTED IN PART and DENIED IN PART.

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as follows:

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1.

The Court ORDERS

Within thirty (30) days of this Order, Defendants A

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Better Sacramento Valley Crane Service (also known as A Better

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Valley Crane, LLC; A Better Valley Crane, Inc.; and A Better Sac

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Valley Crane) and Timothy Gary Baliel shall provide the following

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documents to Plaintiffs Gil Crosthwaite, et al.: (1) all payroll

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registers covering the period January 1, 2007 through June 30,

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2010; (2) all time cards covering the period January 1, 2007

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through June 30, 2010; and (3) Quarterly Tax Reports: Form DE-6 for

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2007, 2008, 2009 and the First and Second Quarters of 2010.

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2.

Should Plaintiffs seek to recover attorneys' fees and

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costs, they must file a declaration providing a detailed accounting

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for the requested attorney fees and costs within fourteen (14) days

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of this Order.

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the Court will enter judgment in an appropriate amount in favor of

United States District Court

For the Northern District of California

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Upon receipt and consideration of these materials,

Plaintiffs and against Defendants.
3.

Plaintiffs' request for an award of "any contributions

due and owing" under the Plan is DENIED as premature.

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IT IS SO ORDERED.

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Dated: May 5, 2011
UNITED STATES DISTRICT JUDGE

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