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Torres v. San Diego County

July 24, 2007

MICHAEL R. TORRES, ET AL. PLAINTIFFS,
v.
SAN DIEGO COUNTY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER DENYING MOTION TO CHANGE THE NAME OF THE DEFAULTED DEFENDANT

Plaintiffs Michael Torres and Jarrod Harshaw have filed a motion to change the name of the defaulted defendant to include (1) Boulevard Bar & Grill, LLC, (2) Jason Simmons and Henry Simpson; (3) Boulevard Bar & Grill; and (4) San Marcos Boulevard, LLC. For the reasons discussed below, Plaintiffs' motion is DENIED.

I. PROCEDURAL BACKGROUND

This action arises out of the alleged assault of Plaintiffs Michael Torres ("Torres") and Jarrod Harshaw ("Harshaw") by bouncers allegedly employed by Defendant Boulevard Bar & Grill, Inc. ("BB&G Inc.") and the events that ensued.

The First Amended Complaint named as defendants "The Boulevard Bar & Grill Inc and the owners individually." On April 19, 2005, Plaintiffs filed an application for entry of default judgment against BB&G Inc., the "individual owners of the Boulevard Bar and Grill, Inc." and "Wally Simpson, Owner." On May 31, 2005, Attorney Lonnie R. Markum filed a motion to set aside default on behalf of "Boulevard Bar & Grill, LLC, and its owners, Henry Walter Simpson III and Jason Mack Simmons."

In an order filed on July 12, 2005, the Court ordered Markum to file a supplemental brief addressing the merits of Plaintiffs' claims on or before July 25, 2005. Markum did not file a supplemental brief by the deadline. In an order filed on August 24, 2005, the Court extended the time for Markum to file the supplemental papers because the Court noticed a mistake in the docketed address for Markum. Subsequently, the Court learned that Markum was no longer eligible to practice law in the state of California. Accordingly, the Court ordered BB&G Inc. to file a substitution of attorney by September 30, 2005 and a supplemental brief in support of its motion to set aside entry of default on or before October 17, 2005. The Court ordered Markum to provide BB&G Inc. with a copy of the order.

In the July 12, 2005 order, the Court also vacated the entry of default against the "individual owners of the Boulevard Bar and Grill, Inc." and Wally Simpson because the First Amended Complaint did not identify who the owners of the BB&G Inc. were and did not name Simpson specifically. The summons for BB&G Inc. was served on Simpson, but neither Simpson nor Simmons were served in their individual capacity.

BB&G Inc. did not file a substitution of attorney or a supplemental brief as directed by the Court. Consequently, in an order filed on October 31, 2005, the Court denied BB&G Inc.'s motion to set aside default and granted Plaintiffs' motion for entry of default judgment. In an order filed on January 27, 2006, the Court amended the amount of the judgment to include punitive damages.

On February 1, 2006, BB&G, Inc., through Joseph La Costa, Esq., filed an "Opposition to Modification of Judgment, Retaxing Costs and Request to Set Aside Judgment." The Court construed the request as a motion to set aside default judgment and denied the motion because BB&G, Inc. had, once again, failed to make any showing that it had a meritorious defense.

On August 23, 2006, Plaintiffs filed a Motion to Enforce Writ of Execution, or in the Alternative, to Change the Name of the Defaulted Defendant to Include Boulevard Bar & Grill, LLC ("BB&G LLC"). The Court denied the motion without prejudice on the ground that it did not have sufficient information to conclude that BB&G Inc. and BB&G LLC were one and the same or alter egos of each other.

On February 14, 2007, Plaintiffs filed an application to have Simpson and Simmons appear for an examination, or, in the alternative, to change the name of the defaulted defendant to include BB&G LLC. The Court denied without prejudice the application to change the name of the defaulted defendant to include BB&G LLC for the same reasons as before. Magistrate Judge Stormes ordered Simpson and Simmons to appear for a third party judgment debtor examination. It appears that the examination did not take place. However, Plaintiffs propounded, and Simpson and Simmons responded to, interrogatories.

On May 22, 2007, Plaintiffs filed the instant motion to change the name of the defaulted defendant to include (1) BB&G LLC; (2) Jason Simmons and Henry Simpson; (3) Boulevard Bar & Grill; and (4) San Marcos Boulevard, LLC.

II. DISCUSSION

Plaintiffs argue that the Court should amend the judgment to include (1) BB&G LLC; (2) Jason Simmons and Henry Simpson; (3) Boulevard Bar & Grill; and (4) San Marcos Boulevard, LLC, because these ...


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