International Brotherhood of Electricial Workers Union, Local 234 Electrical Workers Health & Welfare Trust Fund et al v. Crown Electric, Inc.

Filing 18

ORDER by Judge Lucy H. Koh denying 17 Motion for Default Judgment Without Prejudice. (lhklc2, COURT STAFF) (Filed on 5/10/2011)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION United States District Court For the Northern District of California 10 11 12 13 14 15 16 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS UNION, LOCAL 234 ELECTRICAL WORKERS HEALTH & WELFARE TRUST FUND, et al., Plaintiffs, v. CROWN ELECTRIC, INC., a California corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 10-CV-01319-LHK ORDER DENYING MOTION FOR DEFAULT JUGMENT WITHOUT PREJUDICE 17 Plaintiffs filed this case on March 29, 2010, and served the Defendant on May 14, 2010. 18 The Defendant did not timely answer the complaint, and the Plaintiffs requested entry of default on 19 June 7, 2010. Default was entered on June 9, 2010. On January 28, 2011, the Court ordered 20 Plaintiffs to move for a default judgment within 30 days. Accordingly, on February 24, 2011, 21 Plaintiffs submitted a Motion for Default Judgment (Motion, Dkt. No. 17). 22 In support of the Motion, Plaintiffs submitted a declaration by James Capers. See Dkt. No. 23 17, Ex. 1. Mr. Capers states that he is a “Compliance Audit Manager” at the Miller, Kaplan, Arase 24 & Co., LLP accounting firm, and that he “conducted an audit of Crow Electric, Inc. (for the time 25 period of January 1, 2009 through December 31, 2010) for contributions due to the International 26 Brotherhood of Electrical Workers (IBEW) Local 234 Trust Funds.” Mr. Capers concludes that 27 “the total amount listed represents the total amount Crown Electric, Inc. owes to the Trusts in 28 1 Case No.: 10-CV-01319-LHK ORDER DENYING MOTION FOR DEFAULT JUDGMENT WITHOUT PREJUDICE 1 underreported and unpaid fringe benefit contributions.” Id. However, Plaintiffs have provided no 2 evidentiary basis to establish that the hours Mr. Capers states are “under-reported” were actually 3 under-reported. Plaintiffs must provide some foundation for the evidence presented in and 4 underlying Mr. Capers’ report. In addition, Mr. Capers states that his report is a draft subject to 5 review by another accountant at his firm. Plaintiffs should submit the final report rather than a 6 draft report. Finally, any updated report must state with specificity the source of entitlement to the 7 recovery sought. For example, it is not clear from Plaintiffs’ submission how the “Working Dues” 8 or “N.E.C.A.” sums were calculated, where the rates for these values are set forth, or why Plaintiffs 9 are entitled to these values. Plaintiffs must provide the Court with citations to the Inside United States District Court For the Northern District of California 10 Agreement (or another relevant source) for each portion of recovery. Mr. Capers’ report should be 11 amended to include citations to the source for each type of recovery identified. 12 Plaintiffs’ Motion is DENIED without prejudice. Accordingly, the hearing set for May 12, 13 2011 is VACATED pursuant to Civil Local Rule 7-1(b). Plaintiffs must submit a renewed Motion 14 addressing the issues raised above within 21 days of the date of this Order. Failure to do so will 15 result in dismissal of this action with prejudice. 16 IT IS SO ORDERED. 17 Dated: May 10, 2011 18 _________________________________ LUCY H. KOH United States District Judge 19 20 21 22 23 24 25 26 27 28 2 Case No.: 10-CV-01319-LHK ORDER DENYING MOTION FOR DEFAULT JUDGMENT WITHOUT PREJUDICE

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