Bay Area Painters and Tapers Pension Trust Fund, and its Joint Board of Trustees et al v. Jack Harris Drywall, Inc.

Filing 25

ORDER by Judge Samuel Conti denying 14 Motion for Default Judgment; denying 20 Motion for Default Judgment (sclc1, COURT STAFF) (Filed on 9/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BAY AREA PAINTERS AND TAPERS
PENSION TRUST FUND, et al.,

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Plaintiffs,

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For the Northern District of California

United States District Court

v.
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JACK HARRIS DRYWALL, INC.,
Defendant.

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) Case No. 11-2086 SC
)
) ORDER DENYING APPLICATION
) FOR DEFAULT JUDGMENT
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I.

INTRODUCTION

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Plaintiffs Bay Area Painters and Tapers Pension Trust Fund, et

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al. ("Plaintiffs") seek entry of Default Judgment against Defendant

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Jack Harris Drywall, Inc. ("Defendant").

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Default J.").

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concludes that entry of Default Judgment against Defendant is

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inappropriate because Plaintiffs have failed to effectuate proper

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service.

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WITHOUT PREJUDICE.

ECF No. 14 ("Mot. for

Having considered the papers submitted, the Court

Therefore, the Court DENIES Plaintiffs' Application

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II.

BACKGROUND
Plaintiffs filed the Complaint on April 28, 2011 alleging

violations of the Employee Retirement Income Security Act

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("ERISA").

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a summons on Defendant's agent for service of process by personal

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service.

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pleading or otherwise appear in the case, Plaintiffs requested

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entry of default on May 23, 2011.

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Court entered default on May 26, 2011.

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then filed an application for default judgment on July 20, 2011

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and, on the same day, served the application on Defendant by First

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Class U.S. Mail.

United States District Court

For the Northern District of California

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ECF No. 1 ("Compl.").

ECF No. 9.

On the following day they served

After Defendant did not file a responsive

ECF No. 12.

The Clerk of the

ECF No. 13.

Plaintiffs

ECF No. 14; ECF No. 19.

The following allegations are taken from Plaintiffs'

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Complaint.

Plaintiffs are employee benefit plans, as defined by

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ERISA, and their trustees, fiduciaries, administrators, and

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beneficiaries.

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corporation and an employer under ERISA and the National Labor

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Relations Act ("NLRA").

Compl. ¶¶ 1-3, 12-13.

Defendant is a California

Id. ¶ 5.

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Plaintiffs and Defendant are parties to a collective

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bargaining agreement requiring Defendant to regularly pay

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Plaintiffs certain sums of money, the amounts of which are

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determined by the hours worked by Defendant's employees, among

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other things.

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provides that Defendant is to pay liquidated damages in the amount

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of ten percent for each delinquent contribution.

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trust documents incorporated into the agreement, liquidated damages

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increase to twenty percent for each delinquent contribution which

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is the subject of litigation.

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on delinquent contributions at rates which are to be reasonably set

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by the Plaintiffs.

Id. ¶ 14.

Id.

The collective bargaining agreement

Id.

Id.

Pursuant to

Additionally, interest accrues

Defendant also agreed to permit

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Plaintiffs' representatives to examine necessary records to

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determine whether Defendant has made full payment owed under the

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agreement and to pay audit fees.

Id. ¶ 15.

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Plaintiffs allege that an audit of Defendant's payroll

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revealed that Defendant failed to pay amounts due under the

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collective bargaining agreement for the period of January 1, 2007

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through March 31, 2010 and that Defendant has refused to pay the

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delinquent amounts, liquidated damages, or interest due.

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19-20.

Id. ¶¶

Plaintiff brings this action alleging violations of the

United States District Court

For the Northern District of California

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bargaining agreement; ERISA § 515, 29 U.S.C. § 1145; and the Labor

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Management Relations Act ("LMRA") § 301(a), 29 U.S.C. § 185(a).

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Id. ¶ 18.

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worked, liquidated damages, interest on unpaid contributions,

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attorneys' fees and costs, and audit costs.

Plaintiffs seek all unpaid contributions due for hours

Id. at 6-7.

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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 (9th

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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."

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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).

"As a preliminary

Bd. of

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IV.

DISCUSSION
Federal Rule of Civil Procedure 4(c)(1) provides that "[a]

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summons must be served with a copy of the complaint."

Service of a

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summons without a copy of the full complaint constitutes

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ineffective service of process.

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Portland, 897 F.2d 1519, 1529 (9th Cir. 1990); see also Albra v.

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Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

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provide that an individual may be served by "delivering a copy of

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the summons and of the complaint to the individual personally."

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Fed. R. Civ. P. 4(e)(2)(A).

See W. Coast Theater Corp. v.

The Rules further

United States District Court

Here, copies of the summons were personally delivered to

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For the Northern District of California

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Richard Scarlott, the agent for service of process for Defendant,

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on April 29, 2011.

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of the Complaint was served on Defendant.

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failed to serve the Complaint on Defendant in accordance with Rule

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4, service of process is inadequate and entry of default judgment

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is inappropriate.

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ECF No. 9.

There is no indication that a copy

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Because Plaintiffs have

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V.

CONCL
LUSION
The Court DEN
C
NIES Plai
intiffs' Applicat
tion for Default Judgment
t

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WITHOUT PR
REJUDICE and VACA
ATES the Entry of Default filed o May 26
f
t
on
6,

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2011.

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rdance wi
ith the F
Federal R
Rules of Civil Pr
rocedure.
.
Defendant in accor

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Th Court further GRANTS P
he
Plaintiff leave to re-fi
fs
ile an ap
pplicatio
on

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fo an ent
or
try of de
efault if Defenda
f
ant fails to resp
s
pond to a properl
ly

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served com
mplaint i the ti
in
ime perio specif
od
fied by t
the Feder
ral Rules
s

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f
P
e.
of Civil Procedure

United States District Court

For the Northern District of California

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The Court G
e
GRANTS Pl
laintiffs 30 days leave t proper
s
s
to
rly serve
e

If de
efault is entered Plaint
s
d,
tiffs may re-file
y
e

an applica
n
ation for default judgmen with p
r
t
nt
proof of proper s
service.

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IT IS SO ORDE
S
ERED.

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Dated Septem
d:
mber 9, 2
2011
UNITED ST
U
TATES DIS
STRICT JU
UDGE

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