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