Operating Engineers Health And Welfare Trust Fund For Northern California et al v. Wimmer Excavating, Inc. et al

Filing 86

AMENDED ORDER GRANTING PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT; VACATING HEARING; DIRECTIONS TO CLERK. Signed by Judge Maxine M. Chesney on January 11, 2022. (mmclc1, COURT STAFF) (Filed on 1/11/2022)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 6 OPERATING ENGINEERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA, et al., Plaintiffs, 7 v. 8 9 10 WIMMER EXCAVATING, INC., a California Corporation; and TERRENCE WAYNE WIMMER, AMENDED* ORDER GRANTING PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT; VACATING HEARING; DIRECTIONS TO CLERK Defendants. 11 United States District Court Northern District of California Case No. 19-cv-06840-MMC 12 13 Before the Court is plaintiffs' Motion for Default Judgment, filed December 10, 14 2021. Defendant Wimmer Excavating, Inc., although served with a copy of the motion, 15 has not filed a response. Having read and considered the papers filed in support of the 16 motion, the Court deems the matter appropriate for determination on the moving papers, 17 VACATES the hearing scheduled for January 14, 2022, and, for the reasons stated by 18 plaintiffs, hereby GRANTS the motion, as follows: 19 1. Plaintiffs shall have judgment against defendant Wimmer Excavating, Inc. in the 20 total amount of $337,163.81, such amount comprising unpaid contributions in the amount 21 of $131,935.31, liquidated damages in the amount of $96,016.57, prejudgment interest in 22 the amount of $33,954.11, audit testing fees in the amount of $10,000, reasonable 23 attorney's fees in the amount of $57,146, and costs in the amount of $8,111.82.1 24 25 26 1 To the extent plaintiffs seek to recover any additional fees or costs (see Mot. at 22:3-5), they shall file a motion within the time set forth in Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure. 27 28 *The sole amendment is to substitute "$57,146" for "$57,145" on page 1, line 23. 1 2. The portion of the judgment representing delinquent contributions shall bear 2 post-judgment interest at the rate of ten percent per annum, and, in all other respects, at 3 the rate provided pursuant to 28 U.S.C. ยง 1961. 4 Lastly, as defendant Terrence Wayne Wimmer has filed for protection under 5 Chapter 7 of the United States Bankruptcy Code (see Doc. No. 62), the Court finds "there 6 is no just reason for delay" of entry of judgment with respect to plaintiffs' claims against 7 Wimmer Excavating, Inc. See Fed. R. Civ. P. 54(b). Accordingly, the Clerk of Court is 8 hereby DIRECTED to enter judgment in favor of plaintiffs and against defendant Wimmer 9 Excavating, Inc. 10 IT IS SO ORDERED. United States District Court Northern District of California 11 12 Dated: January 11, 2022 MAXINE M. CHESNEY United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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