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Orange County Electrical Industry Health and Welfare Trust v. Moore Electrical Contracting

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


September 13, 2012

ORANGE COUNTY ELECTRICAL INDUSTRY HEALTH AND WELFARE TRUST FUND; LOCAL UNION NO. 441 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; AND DOUGLAS CHAPPELL, AS TRUSTEE OF THE ABOVE TRUST FUND,
PLAINTIFFS,
v.
MOORE ELECTRICAL CONTRACTING, INC., A CALIFORNIA CORPORATION, DEFENDANT.

The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER DIRECTING PLAINTIFFS TO FILE STATEMENT RE: SERVICE OF PROCESS

Plaintiffs Orange County Electrical Industry Health and Welfare Trust Fund (the "Trust Fund"); Local Union No. 441 of the International Brotherhood of Electrical Workers ("IBEW 22 Local 441"); and Douglas Chappell, as Trustee of the Trust Fund (collectively, "Plaintiffs"), have 23 filed a third, unopposed motion for default judgment against Defendant Moore Electrical 24 Contracting, Inc. ("Defendant"), alleging violations of the Employee Retirement Income Security 25 Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1191c, and the Labor Management Relations Act 26 ("LMRA"), 29 U.S.C. §§ 141-188. A hearing on Plaintiffs' motion is set for September 20, 2012.

Because Defendant has appeared in this action, Federal Rule of Civil Procedure 55(b)(2) 28 requires, as a prerequisite to entry of default judgment, that Plaintiffs serve Defendant or its representative with written notice of the application at least seven days before the hearing on the 2 default judgment. See Fed. R. Civ. P. 55(b)(2). Here, Defendant timely answered the Complaint 3 on March 24, 2011. See ECF No. 5. However, Defendant's counsel subsequently withdrew as 4 attorney of record on July 20, 2011. See ECF No. 17. Plaintiffs filed their third motion for default 5 judgment electronically on May 29, 2012, but did not file separate proof of service of the motion 6 on Defendant. Given that Defendant's counsel withdrew as counsel of record on July 20, 2011, 7 and Defendant has not requested permission to e-file itself, it is unclear whether Plaintiffs served Defendant with written notice of the default judgment application as required under Rule 55(b)(2). 9 The Court is therefore unable to determine whether service of process was adequate.

Accordingly, by September 14, 2012, Plaintiffs shall file a statement and supporting declaration, as well as any necessary documentation, addressing whether and how Plaintiffs served written notice of the application for default judgment on Defendant.

IT IS SO ORDERED.

20120913

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