Crosthwaite et al v. Mac Grading & Paving Inc et al

Filing 27

ORDER DENYING re 26 REQUEST FOR ENTRY OF DEFAULT JUDGMENT WITHOUT HEARING. Signed by Magistrate Judge Joseph C. Spero on 10/16/2009. (ls, COURT STAFF) (Filed on 10/16/2009) Modified on 10/19/2009 (vlk, COURT STAFF).

1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 [phone] 4 [phone] ­ Facsimile [e-mail] 5 [e-mail] 6 Attorneys for Plaintiffs 7 8 9 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: C09-1159 PJH (JCS) REQUEST FOR ENTRY OF DEFAULT JUDGMENT WITHOUT HEARING; DECLARATION OF MURIEL B. KAPLAN IN SUPPORT THEREOF Date: Time: Location: Courtroom: Judge: October 23, 2009 9:30 a.m. 450 Golden Gate Avenue San Francisco, California A, 15th Floor Honorable Joseph C. Spero

10 GIL CROSTHWAITE, et al. as Trustees of the OPERATING ENGINEERS HEALTH AND 11 WELFARE TRUST FUND, et al., 12 13 v. 14 MAC GRADING & PAVING, INC. dba MAC GRADING & PAVING, DANIEL WAYNE 15 McCOWAN, JR.; MARSHA ANN McCOWAN, 16 Defendants. 17 18 I, Muriel B. Kaplan, declare: 19 1. Plaintiffs,

I am an attorney at law licensed to practice in the State of California, and am a

20 shareholder of Saltzman and Johnson Law Corporation, attorneys for Plaintiffs herein. 21 2. I submit this Declaration in support of Plaintiffs' pending Motion for Default

22 Judgment filed on July 8, 2009. I am requesting that Judgment be entered by the Court without 23 the necessity of a hearing and that the Court vacate the hearing date presently set for October 23, 24 2009 at 9:30 a.m. before the Honorable Joseph C. Spero. 25 3. The time for filing any Opposition to the Motion for Default Judgment has passed,

26 no Opposition has been filed, and Defendants have made no contact with me. Entering Judgment 27 without the necessity of a hearing will keep the fees and costs at a minimum, particularly in light 28
-1REQUEST FOR ENTRY OF DEFAULT JUDGMENT Case No.: C09-1159 PJH (JCS)
P:\CLIENTS\OE3CL\Mac Grading & Paving, Inc\Pleadings\C09-1159 PJH (JCS) Request for Entry of Judgment 101609.DOC

1 of the fact that collection is uncertain and that no amounts have been recovered subsequent to the 2 filing of the Motion for Default Judgment on July 8, 2009. 3 4. As the Court is aware, this matter has been ongoing for some time. Defendants

4 have ignored response dates to Plaintiffs' letters, in which Plaintiffs attempted to collect the 5 amounts already due. As it is uncertain whether Plaintiffs will recover the amounts already due, 6 and attorneys' fees and costs are "out of pocket," Plaintiffs are attempting to keep fees (and thus 7 any further Trust Funds' loss) at a minimum. 8 5. Plaintiffs have exercised due diligence by mailing a copy of the Notice of Motion

9 and Motion for Default Judgment to Defendants, as indicated in the Proof of Service filed on July 10 8, 2009. As Plaintiffs have had no response from Defendants to any attempt at contact since 11 September 2008, and prior to our filing of this action in March 16, 2009, it is doubtful that 12 Defendants will appear at the hearing. 13 To the best of my knowledge and belief, Defendants are not infants or incompetent

14 persons, nor are Defendants in the military service of the United States. 15 I declare under penalty of perjury that the foregoing is true of my own knowledge and if

16 called upon I could competently testify thereto. 17 18 19 20 21 22 IT IS SO ORDERED. 23 Default Judgment is entered for Plaintiffs and against Defendants, as stated in the [Proposed] 24 Judgment filed concurrently with the Motion for Default Judgment on July 8, 2009, without the
UNIT ED
ISTRIC ES D TC AT T

Executed this 16th day of October, 2009, at San Francisco, California. SALTZMAN & JOHNSON LAW CORPORATION

By:

_________/s/_______________ Muriel B. Kaplan Attorneys for Plaintiffs

25 necessity of a hearing. 26

RT U O

DENIED.

S

DENIE

D

October 16, 2009 27 Dated:___________________________ 28

______________________________________ Spero seph C. Judge Jo HONORABLE JOSEPH C. SPERO ER UNITED STATES MAGISTRATE JUDGE C
A

-2N OF REQUEST D IS T R I C T FOR ENTRY OF DEFAULT JUDGMENT Case No.: C09-1159 PJH (JCS)

P:\CLIENTS\OE3CL\Mac Grading & Paving, Inc\Pleadings\C09-1159 PJH (JCS) Request for Entry of Judgment 101609.DOC

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FO

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1 2 I, the undersigned, declare: 3

PROOF OF SERVICE

I am a citizen of the United States and am employed in the County of San Francisco, State

4 of California. I am over the age of eighteen and not a party to this action. My business address is 5 44 Montgomery Street, Suite 2110, San Francisco, California 94104. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-1PROOF OF SERVICE Case No.: C09-1159 PJH (JCS)
P:\CLIENTS\OE3CL\Mac Grading & Paving, Inc\Pleadings\C09-1159 PJH (JCS) Request for Entry of Judgment 101609.DOC

On October 16, 2009, I served the following document(s): REQUEST FOR ENTRY OF DEFAULT JUDGMENT WITHOUT HEARING; DECLARATION OF MURIEL B. KAPLAN IN SUPPORT THEREOF on the interested parties in said action by First Class U.S. Mail, by placing a true and exact copy of each document in a sealed envelope with postage thereon fully prepaid, in a United States Post Office box in San Francisco, California, addressed as follows: Daniel Wayne McCowan Agent of Service of Process Mac Grading & Paving, Inc. 2791 Swan Lane Los Banos, CA 93635 Marsha Ann McCowan 2791 Swan Lane Los Banos, CA 93635 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on this 16th day of October, 2009, at San Francisco, California. Daniel Wayne McCowan 2791 Swan Lane Los Banos, CA 93635

_______________/s/_______________ Qui X. Lu