Board of Trustees of the Laborers Health and Welfare Trust Fund for Northern California et al v. Kudsk Construction, Inc. et al

Filing 20

ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 18 MOTION TO STRIKE ANSWER. (ndr, COURT STAFF) (Filed on 7/23/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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BOARD OF TRUSTEES OF THE LABORERS
HEALTH AND WELFARE TRUST FUND FOR
NORTHERN CALIFORNIA; BOARD OF
TRUSTEES OF THE LABORERS
VACATION-HOLIDAY TRUST FUND FOR
NORTHERN CALIFORNIA; BOARD OF
TRUSTEES OF THE LABORERS PENSION
TRUST FUND FOR NORTHERN
CALIFORNIA; and BOARD OF TRUSTEES
OF THE LABORERS TRAINING AND
RETRAINING TRUST FUND FOR
NORTHERN CALIFORNIA,

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ORDER GRANTING
PLAINTIFFS’ MOTION
TO STRIKE ANSWER
(Docket No. 18)

Plaintiffs,

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No. C 12-165 CW

v.
KUDSK CONSTRUCTION, INC.; and
LARRY JAMES KUDSK,
Defendants.
________________________________/

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Plaintiffs Board of Trustees of the Laborers Health and

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Welfare Trust Fund for Northern California, Board of Trustees of

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the Laborers Vacation-Holiday Trust Fund for Northern California,

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Board of Trustees of the Laborers Pension Trust Fund for Northern

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California, and Board of Trustees of the Laborers Training and

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Retraining Trust Fund for Northern California move to strike the

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answers to Plaintiffs’ complaint filed by Defendants Kudsk

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Construction, Inc. and Larry James Kudsk.

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filed a response to Plaintiffs’ motion.

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Plaintiffs’ motion under submission on the papers.

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considered the papers filed by Plaintiffs, the Court GRANTS the

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motion and STRIKES Defendants’ answers.

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Defendants have not

The Court takes
Having

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BACKGROUND

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On January 10, 2012, Plaintiffs filed their complaint seeking

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to recover employee fringe benefit contributions owed by

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Defendants.

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Docket No. 1.

On February 15, 2012, Defendants, through shared counsel,
filed answers to Plaintiffs’ complaint.

Docket Nos. 6 and 7.

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On February 29, 2012, at the request of Defendants, the

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parties agreed to and filed a joint stipulation to stay the case

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for ninety days to allow the parties attempt to resolve the

United States District Court
For the Northern District of California

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dispute informally.

Docket No. 14; Richman Decl. ¶ 3.

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On March 2, 2012, the Court granted the parties’ stipulation

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and ordered the parties to appear at a case management conference

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on June 6, 2012 at 2:00 p.m.

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the parties to submit a joint case management statement seven days

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prior to the case management conference advising the Court as to

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the status of the parties’ informal attempts to resolve the case.

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Id.

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Docket No. 15.

The Court directed

Once the stay was issued, Defendants refused to respond to

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Plaintiffs’ attempts to discuss the case.

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Prior to the case management conference, Plaintiffs drafted a

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joint case management statement and sent it to Defendants for

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their input.

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Id. at ¶ 4.

Richman Decl. ¶ 3.

Defendants did not respond.

Id.

Defendants failed to appear at the June 6, 2012 case

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management conference.

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directed Plaintiffs to file a motion for default judgment.

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Docket No. 17.

At that time, the Court

On July 6, 2012, Plaintiffs filed the instant motion to

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strike Defendants’ answers.

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Local Rule 7-3(a), Defendants were required to file their response

Docket No. 18.

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Pursuant to Civil

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to the motion to strike by July 20, 2012.

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filed a response.

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Defendants have not

LEGAL STANDARD
“District courts have inherent power to control their
dockets.

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including, where appropriate, default or dismissal.”

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Housing Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.

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1986).

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other things, that, if a party or its attorneys “fails to appear

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United States District Court
For the Northern District of California

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at a scheduling or other pretrial conference” or “fails to obey a

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scheduling or other pretrial order,” the court “may issue any just

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orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii).

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See Federal Rule of Civil Procedure 16(f)(1)(A)-(C).

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37(b)(2)(A)(iii), in turn, authorizes the court to strike

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pleadings in whole or in part.

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default, the sanctioned party’s violations must be due to the

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willfulness, bad faith, or fault of the party.”

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Airlines, Inc., 2012 U.S. App. LEXIS 14683, at *13 (9th Cir.)

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(internal quotations omitted).

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be outside the control of the litigant is sufficient to

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demonstrate willfulness, bad faith, or fault.”

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Cassiday, 320 F.3d 906, 912 (9th Cir. 2003).

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In the exercise of that power they may impose sanctions
Thompson v.

Federal Rule of Civil Procedure 16(f) provides, among

Rule

“Where the sanction results in

Hester v. Vision

“Disobedient conduct not shown to

Jorgenson v.

“A court must consider the following five factors before

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striking a pleading or declaring default: (1) the public’s

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interest in expeditious resolution of litigation; (2) the court’s

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need to manage its docket; (3) the risk of prejudice to the other

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party; (4) the public policy favoring the disposition of cases on

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their merits; and (5) the availability of less drastic sanctions.”
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Hester, 2012 U.S. App. LEXIS 14683, at *14 (internal quotations

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omitted).

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factor include (1) the availability of lesser sanctions; (2) the

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use of lesser sanctions before termination; and (3) the adequate

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warning of the possibility of termination.

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that a court does not implement a lesser sanction before striking

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an answer is not dispositive.”

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court may be required to provide warning when a court sua sponte

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dismisses a case, an express warning of the possibility of

Three subfactors that assist in evaluating the fifth

Id. at *17.

Id. at *16.

“The fact

Further, while a

United States District Court
For the Northern District of California

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termination is not required in the context of a noticed motion.

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See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d

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1217, 1229 (9th Cir. 2006).

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DISCUSSION

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Defendants here have failed to comply with the Court’s

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scheduling order by refusing to participate in the preparation of

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a joint case management statement and failing to appear at the

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case management conference.

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informal settlement discussions after requesting that Plaintiffs

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agree to stay prosecution of this action for this purpose and the

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Court ordered such a stay.

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that their disobedience was outside their control.

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Court concludes that their conduct demonstrates willfulness, bad

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faith, or fault.

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Defendants also failed to engage in

Defendants have not argued or shown
Thus, the

The first two factors favor striking Defendants’ answer.

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Their conduct has impeded resolution of this case and has

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prevented the Court from setting a schedule by which this case

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could proceed.

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Defendants’ refusal to participate in this action has prejudiced

The third factor also favors granting the motion.

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Plaintiffs’ ability to proceed to a trial to resolve the merits of

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their claims.

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1227.

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against dismissal, “a case that is stalled or unreasonably delayed

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by a party’s failure to comply with deadlines and discovery

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obligations cannot move forward toward resolution on the merits.”

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Id. at 1228.

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See In re PPA Prods. Liab. Litig., 460 F.3d at

While courts generally hold that the fourth factor counsels

Finally, the Court concludes that the fifth factor also
favors striking Defendants’ answers.

Defendants’ conduct thus far

United States District Court
For the Northern District of California

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demonstrates that a warning or additional chance to respond will

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not be effective.

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conference that it would entertain a motion for default judgment

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in this case.

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sought to strike their answers.

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the motion in any way.

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not offered any explanation or reason to conclude that these were

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failures were not willful or in bad faith.

The Court made clear at the case management

Defendants were also on notice that Plaintiffs

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Yet, they failed to respond to

Further, as previously noted, they have

CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiffs’

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unopposed motion to strike Defendants’ answers (Docket No. 18).

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Defendants’ answers are hereby STRICKEN.

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Clerk to enter default against Defendants.

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The Court directs the

Plaintiffs shall file a motion for default judgment within
thirty days of the date of this Order.
IT IS SO ORDERED.

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Dated:

7/23/2012

CLAUDIA WILKEN
United States District Judge
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