Alameda County Electrial Industry Service Corporation et al v. Banister Electrical, Inc.
Filing
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Order by Magistrate Judge Laurel Beeler denying 13 Motion for Default Judgment.(lblc1, COURT STAFF) (Filed on 7/25/2012)
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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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ALAMEDA COUNTY ELECTRICAL
INDUSTRY SERVICE CORPORATION, et
al.,
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Plaintiffs,
No. C 11-04126 LB
ORDER DENYING PLAINTIFF’S
MOTION FOR DEFAULT
JUDGMENT
v.
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[ECF No. 13]
BANISTER ELECTRICAL, INC.,
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Defendant.
_____________________________________/
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I. INTRODUCTION
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Plaintiffs - the trust funds and the trustees of the employee benefit plans for electricians - sued
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Defendant Banister Electrical, Inc. for failing to make its required contributions to the trust funds in
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violation of the parties’ collective bargaining agreement, the trust agreements, and the Employee
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Retirement Income Security Act (ERISA). See Complaint, ECF No. 1 at 2, ¶ 2.1 At the May 2,
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2012 hearing, the court was under the misapprehension that Plaintiffs’ newly sought relief only took
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into account new, partial payments from Banister and that there had been meaningful notice.
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Having reviewed the new declaration, which was filed by Plaintiffs just two days before the hearing,
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the court denies Plaintiffs’ motion for default judgment because Plaintiffs seek relief that differs
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from that set forth in the complaint and did not provide sufficient notice to Banister.
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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 11-04126 LB
ORDER
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II. DISCUSSION
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The facts of this case present a frequently recurring issue: in the context of a default judgment,
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what is required when the damages sought by the plaintiffs are a constantly moving target as (a)
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additional damages accrue and (b) the defendants partially cure past deficiencies over the course of
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the litigation.
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Under Federal Rule of Civil Procedure 55(b)(2), a plaintiff may apply to the district court for –
otherwise defend an action. See Draper v. Combs, 792 F.2d 915, 925 (9th Cir. 1986). But the
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plaintiff must prove all damages sought in the complaint. See Philip Morris USA, Inc. v. Castworld
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Prods., Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003). And “even a defaulting party is entitled to have
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its opponent produce some evidence to support an award of damages.” LG Elecs., Inc. v. Advance
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For the Northern District of California
and the court may grant – a default judgment against a defendant who has failed to plead or
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Creative Computer, 212 F.Supp.2d 1171, 1178 (N.D. Cal. 2002).
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Furthermore, pursuant to Federal Rule of Civil Procedure 54(c), “[a] default judgment must not
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differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P. 54(c).
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The purpose of this rule is to ensure that a defendant is put on notice of the damages being sought
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against it so that he may make a calculated decision as to whether or not it is in his best interest to
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answer. In re Ferrell, 539 F.3d 1186, 1192-93 (9th Cir. 2008); Board of Trustees of the Sheet Metal
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Workers Local 104 Health Care Plan v. Total Air Balance Co., No. 08-2038 SC, 2009 WL 1704677,
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at *3-5 (N.D. Cal. June 17, 2009).
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In a similar case, another court in this district held that the defendants were put on notice that the
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plaintiffs were seeking post-filing contributions even though the amounts were not specified in the
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complaint. Board of Trustees of the Sheet Metal Workers Local 104 Health Care Plan v. Total Air
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Balance Co., No. 08-2038 SC, 2009 WL 1704677, at *3-5 (N.D. Cal. June 17, 2009). In Total Air
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Balance, the plaintiffs filed the complaint, and after payments and subsequent non-payments, they
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filed an amended complaint which demanded “additional monthly amounts [that] bec[a]me due
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during the course of this litigation.” Id. at *3. The defendant was served the complaint, amended
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complaint, the motion for default judgment and accompanying declarations evidencing the unpaid
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contributions. Id. at *5. The court determined that, based on these facts, the defendant was put on
C 11-04126 LB
ORDER
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notice and “was capable of tracking its liability” of the post-filing damages. Id. Further, the court
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stated that requiring the plaintiffs to continue to file amended complaints or supplemental pleadings
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would lead to indefinite entries of default by the court because defendant remained a “moving
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target.” Id. The court held that in the interest of justice, the plaintiffs should be awarded all pre-
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judgment delinquent contributions. Id.
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On the other end of the spectrum, a district court denied a plaintiff's motion for default judgment
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where the complaint failed to estimate the amount of contributions sought but, instead, alleged that
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the defendant had unique knowledge as to the amount. Board of Trustees of the Sheet Metal
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Workers Health Care Plan of Northern California Board of Trustees of the Sheet Metal Workers
Health Care Plan of Northern California v. Kym Mechanical, No. C 09–05944 RS, 2010 WL
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2486627, at *2 (N.D. Cal. June 15, 2010).
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For the Northern District of California
UNITED STATES DISTRICT COURT
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Splitting the difference, a district court refused to award a plaintiff contributions that were
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delinquent when the complaint was filed but permitted recovery of the contributions that
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subsequently became due. Bay Area Painters v. Alta Specialty, No. C06–06996 MJJ, 2008 WL
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114931, at *4 (N.D. Cal. Jan.10, 2008).
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The undersigned has generally found the first approach to be most appropriate. See, e.g., Board
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of Trustees of Northern California Sheet Metal v. Efficient Energy Concepts, Board of Trustees of
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Northern California Sheet Metal v. Efficient Energy Concepts, Inc., No. C 11–02626 LB, 2011 WL
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7062493, at *6 (N.D. Cal. Dec. 22, 2011). But there is a limit to the flexibility that may be
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employed and this case has exceeded those limits.
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Here, in their complaint, which was filed in August 2011, Plaintiffs sought damages for unpaid
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contributions “from March 1, 2011 to the present,” alleging specifically that the amount of unpaid
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contributions, liquidated damages, and interest through August 20, 2011 was $43,313.32.
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Complaint, ECF No. 1 at 5.
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When Plaintiffs filed their motion for default judgment in March 2012, Plaintiffs sought
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approximately $20,000 in unpaid contributions for work performed during the months of September,
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October, and November of 2011, and the attendant liquidated damages and interest. Motion, ECF
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No. 13 at 2.
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submissions to the court were no longer accurate because Defendant had made interim payments.
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Plaintiffs’ counsel asked if he could orally amend the amount to $9,155.97 because Defendant had
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made additional payments. He explained that he had not filed an updated declaration regarding the
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reduced amount now sought because he was concerned that the court would move the hearing date.
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Plaintiffs’ counsel provided no advance documentation of the change in damages sought despite
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having notified the courtroom deputy of the issue and having been informed that he should file an
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updated declaration. Without any advance documentation, the court could not verify the amount of
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damages sought. Additionally, the filing of updated declarations – in conjunction with serving these
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filings on the defaulting party – creates a clear record of notice to the defaulting party. Given these
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factors, the court denied Plaintiffs’ oral request, deferred ruling on the matter until a subsequent
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For the Northern District of California
Then, at the initial hearing on March 1, 2012, Plaintiffs’ counsel admitted that Plaintiffs’
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hearing initially scheduled for April 5, 2012 and directed Plaintiffs to file updated declarations.
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On March 20, 2012, Plaintiffs’ counsel filed an updated declaration that informed the court that
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Bannister Electrical paid $17,081.26. Thomas Decl., ECF No. 17 at 2. Plaintiffs requested no more
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costs or attorneys’ fees than in the original motion. Id. Then, on April 2, 2012, just three days
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before the scheduled hearing, Plaintiffs re-noticed the hearing without any explanation. Notice, ECF
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No. 19 at 1.
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Subsequently, on April 30, 2012, Plaintiffs filed another updated declaration, seeking
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approximately $9,000 in delinquent contributions and interest for two new months – February and
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March 2012 – along with additional attorneys’ fees. McClaskey Decl., ECF No. 21 at 3; Thomas
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Decl., ECF No. 21-2 at 2.
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Here, Plaintiffs’ actions appear to demonstrate that they are using the motion for default
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judgment as a mechanism for extracting payments from Banister Electrical. A motion for default
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judgment with constantly updated declarations might not be the most appropriate or best means for
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chasing a moving target.
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Moreover, Plaintiffs’ notice regarding the final requested relief was deficient. Plaintiffs filed
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their last declaration with an updated request for damages on April 30, 2012. ECF No. 21 at 1.
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Plaintiffs served this declaration on Bannister Electrical via mail on that same day. ECF No. 21-2 at
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2. The hearing on Plaintiffs’ motion was scheduled for May 2, 2012. ECF No. 20. Mailing the
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updated declaration only two days before the hearing simply does not provide sufficient notice to a
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defaulting defendant. See Fed. R. Civ. P. 6(e) (allowing three extra days for a response if service is
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by mail).
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III. CONCLUSION
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For the foregoing reasons, the court DENIES Plaintiffs’ motion for default judgment. If
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Plaintiffs wish to pursue the damages sought in the April 30, 2012 declaration, they may file an
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amended complaint within 45 days and a new motion for default damages, if and when the clerk
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enters default. The court further ORDERS Plaintiffs to serve a copy of this order on Banister
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Electrical.
This disposes of ECF No. 13.
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For the Northern District of California
UNITED STATES DISTRICT COURT
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IT IS SO ORDERED.
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Dated: July 25, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge
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C 11-04126 LB
ORDER
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