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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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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.

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Case No.: 10-CV-01319-LHK

ORDER DENYING MOTION FOR
DEFAULT JUGMENT WITHOUT
PREJUDICE

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Plaintiffs filed this case on March 29, 2010, and served the Defendant on May 14, 2010.
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The Defendant did not timely answer the complaint, and the Plaintiffs requested entry of default on
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June 7, 2010. Default was entered on June 9, 2010. On January 28, 2011, the Court ordered
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Plaintiffs to move for a default judgment within 30 days. Accordingly, on February 24, 2011,
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Plaintiffs submitted a Motion for Default Judgment (Motion, Dkt. No. 17).
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In support of the Motion, Plaintiffs submitted a declaration by James Capers. See Dkt. No.
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17, Ex. 1. Mr. Capers states that he is a “Compliance Audit Manager” at the Miller, Kaplan, Arase
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& Co., LLP accounting firm, and that he “conducted an audit of Crow Electric, Inc. (for the time
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period of January 1, 2009 through December 31, 2010) for contributions due to the International
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Brotherhood of Electrical Workers (IBEW) Local 234 Trust Funds.” Mr. Capers concludes that
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“the total amount listed represents the total amount Crown Electric, Inc. owes to the Trusts in
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Case No.: 10-CV-01319-LHK
ORDER DENYING MOTION FOR DEFAULT JUDGMENT WITHOUT PREJUDICE

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underreported and unpaid fringe benefit contributions.” Id. However, Plaintiffs have provided no

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evidentiary basis to establish that the hours Mr. Capers states are “under-reported” were actually

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under-reported. Plaintiffs must provide some foundation for the evidence presented in and

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underlying Mr. Capers’ report. In addition, Mr. Capers states that his report is a draft subject to

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review by another accountant at his firm. Plaintiffs should submit the final report rather than a

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draft report. Finally, any updated report must state with specificity the source of entitlement to the

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recovery sought. For example, it is not clear from Plaintiffs’ submission how the “Working Dues”

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or “N.E.C.A.” sums were calculated, where the rates for these values are set forth, or why Plaintiffs

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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

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Agreement (or another relevant source) for each portion of recovery. Mr. Capers’ report should be

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amended to include citations to the source for each type of recovery identified.

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Plaintiffs’ Motion is DENIED without prejudice. Accordingly, the hearing set for May 12,

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2011 is VACATED pursuant to Civil Local Rule 7-1(b). Plaintiffs must submit a renewed Motion

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addressing the issues raised above within 21 days of the date of this Order. Failure to do so will

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result in dismissal of this action with prejudice.

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IT IS SO ORDERED.

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Dated: May 10, 2011

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_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-01319-LHK
ORDER DENYING MOTION FOR DEFAULT JUDGMENT WITHOUT PREJUDICE