International Brotherhood of Electrical Workers District 9 Pension Plan et al v. Solano Communications, Inc.

Filing 36

ORDER re 35 MOTION to Reopen Case and Enter Stipulated Judgment filed by John O'Rourke, Northern California-Northern Nevada Sound & Communication District No. 9 Apprenticeship & Training Committee, Northern California-Northern Nevada Sound & Communication District No. 9 Health and Welfare Trust Fund, International Brotherhood of Electrical Workers District 9 Pension Plan. Signed by Judge Lucy H. Koh on 12/10/2012. (lhklc2, COURT STAFF) (Filed on 12/10/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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United States District Court
For the Northern District of California

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INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS DISTRICT 9
PENSION PLAN, et al.,
Plaintiffs,
v.
SOLANO COMMUNICATIONS, INC., a
California corporation,
Defendant.

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Case No.: 10-CV-01280-LHK
ORDER REOPENING CASE

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On November 18, 2010, the parties filed a stipulation for contingent order of dismissal,
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indicating that they had settled the case and had agreed to dismiss it without prejudice, and that
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Plaintiffs could reopen the case if necessary to enforce the settlement agreement. ECF No. 21.
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The settlement agreement included a stipulated judgment that Plaintiffs could file to collect any
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payments due under the settlement agreement. See ECF No. 21, Exh. A. At the parties’ request,
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the Court entered an Order dismissing the case without prejudice on November 22, 2010. ECF No.
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23. That Order also indicated that the Court would reopen the case if any party certified that the
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consideration set forth in the settlement agreement had not been delivered, and filed proof of
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service on the opposing party or counsel. Id.
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Plaintiffs have now filed a motion to reopen the case and enter stipulated judgment,
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accompanied by the required proof of service. ECF Nos. 28, 35. They have also filed two
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declarations in support, certifying that Defendant made the initial payment required under the
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Case No.: 10-CV-01280-LHK
ORDER REOPENING CASE

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settlement agreement, but has failed to make the subsequent required payments. ECF Nos. 29, 30.

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Federal Rule of Civil Procedure 60(b)(6) states, “On motion and just terms, the court may relieve a

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party or its legal representative from a final judgment, order, or proceeding for. . . any . . . reason

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that justifies relief.” As the parties have stipulated to the reopening of this case if one party

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certifies that the payments agreed upon have not been made, the Court finds that there is good

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cause to reopen the case. Accordingly, the motion to reopen the case is GRANTED.

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Plaintiffs’ motion also appears to contemplate the immediate entry of judgment. However,

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the proposed order Plaintiffs have submitted is not in the form of the stipulated judgment agreed

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upon by the parties. See ECF No. 21 at 8 (stipulation agreed to as part of settlement). Thus, the

United States District Court
For the Northern District of California

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Court will not enter the order that Plaintiffs have proposed. The Court’s Order dismissing the case

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specified that Plaintiffs could move to reopen the case, and that “Plaintiffs may then insert the

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appropriate amount owed and file the Stipulation for Entry of Judgment.” ECF No. 23 at 2

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(emphasis added). Further, Planitiffs’ counsel has indicated uncertainty as to the precise amount of

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fees to be awarded, instead submitting an estimate. ECF No. 29 at 4. As the case is now reopened,

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Plaintiffs may now insert the appropriate amount and file the stipulated judgment with appropriate

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documentation of the precise amount due by December 17, 2012. The hearing on this motion

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scheduled for December 13, 2012 is hereby VACATED.

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IT IS SO ORDERED.

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Dated: December 10, 2012

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-01280-LHK
ORDER REOPENING CASE