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Trustees of Southern California IBEW-NECA Pension Plan v. Pro Tech Engineering Corp.

United States District Court, C.D. California, Southern Division

June 20, 2016

TRUSTEES OF THE SOUTHERN CALIFORNIA IBEW-NECA PENSION PLAN, ET AL., Plaintiffs,
v.
PRO TECH ENGINEERING CORPORATION, Defendants.

          ORDER GRANTING IN PART PLAINTIFFS' APPLICATION FOR AN AWARD OF FEES AND COSTS [52]

          DAVID O. CARTER UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiffs' Application for an Award of Fees and Costs ("Application") (Dkt. 52). Oral argument was held on June 10, 2016 (Dkt. 55). Having reviewed the papers and considered the parties' arguments, the Court hereby GRANTS IN PART Plaintiffs' Application.

         I. Background

         Plaintiffs commenced this action on April 22, 2015. See generally Complaint ("Compl.") (Dkt. 1). On Jun 10, 2015, Plaintiffs filed a Request for Entry of Default Pursuant to Federal Rule of Civil Procedure 55(a) (Dkt. 10). On June 12, 2015, the Clerk entered default against Defendant Pro Tech Engineering Corporation ("Pro Tech" or "Defendant") (Dkt. 11).

         On August 17, 2015, Plaintiffs, who are trustees of express trusts ("Trusts") created pursuant to written declarations of trust ("Trust Agreements'"), see Id. ¶ 5, filed a Motion to Compel Defendant to Produce Documents, and Request for Sanctions, arguing Defendant failed to produce certain documents despite being served with a subpoena ("Motion to Compel") (Dkt. 16). On September 18, 2015, the Magistrate Judge issued an Order Compelling Defendant to Produce Documents, and Awarding Sanctions to Plaintiffs ("September 18, 2015 Order") (Dkts. 21, 31).[1] In the September 18, 2015 Order, the Magistrate Judge ordered Defendant Pro Tech to produce the documents that had been specifically identified in the subpoenas Plaintiffs served on Pro Tech and Mostafa Niknafs ("Niknafs"), Pro Tech's principal. Id. at 1-5. The Magistrate Judge also ordered Pro Tech to pay sanctions in the amount of $1, 488.00. Id. at 5. Pro Tech did not comply with the Magistrate Judge's Order by the deadline set in the Magistrate Judge's September 18, 2015 Order.

         On January 29, 2016, Plaintiffs filed a Motion for Default Judgment against Defendant Pro Tech (Dkt. 25). In the Motion for Default Judgment, Plaintiffs sought to compel an audit of Pro Tech and collect unpaid fringe benefit contributions and related mandatory damages due under a collective bargaining agreement and 29 U.S.C. § 502(g)(2). Mot. for Default Judgment at 1. On March 21, 2016, the Court denied the Motion for Default Judgment without prejudice, concluding that, "[b]ecause no contribution deficiencies have yet been determined (because Plaintiffs have been unable to complete their audit [of Defendant Pro Tech]), the Court finds no basis to award liquidated damages or interest." ("March 21, 2016 Order") (Dkt. 32). The Court further stated: "because it appears Defendant failed to comply with the Magistrate Judge's Order, the Court finds it appropriate to set a hearing on contempt." Id. at 5.

         On April 4, 2016, Defendant filed Objections to Being Held in Contempt ("Objections") (Dkt. 36). On April 5, 2016, Defendant filed an Ex Parte Application to Set Aside Default Re: Clerk's Entry of Default (Dkt. 39). In these filings, Defendant stated it was never served with the Summons, Compaint, subpoenas, Motion to Compel, or the Magistrate Judge's Order. See id.; Objections at 1.

         On May 9, 2016, the Court held the contempt hearing.[2] Michael Frias ("Frias"), the process server employed by Plaintiffs, testified, as did Niknafs. During the cross examination of Niknafs by Plaintiffs' counsel (Mr. Bechtel), the following took place:

Q: Mr. Niknafs, do you typically retrive the mail in your household?
A: When I'm coming home, uh, from work, I retrieve the mail.
Q: And that's your normal practice?
A: Yes.
Q: Whether you - the e-mail you just referenced in Defendant's Exhibit 6, [3] did you also receive a copy of that document by mail?
A: No, I did not.
Q: If you were to receive mail at your house that was labeled to Pro Tech Electric, would you reject that mail?
A: I would - if I received it, I would open it.
Mr. Bechtel: May we approach the witness, Your Honor?
Mr. McDonald: May I see what they're gonna show him?
• .
(Documents provided to the witness.)
The Court: Counsel, your questions.
By Mr. Bechtel:
Q: Can you look at that first document, the first envelope that was handed to you.
A: Yes.
• .
Q: It's addressed to Pro Tech Engineering Corporation, doing business as Pro Tech Electric.
Is that - are you looking at the correct document?
The Witness: You mean the - The Court: Answer the question, sir.
The Witness: Yes.
By Mr. Bechtel:
Q: Okay, on the bottom there, do you see the handwriting that says, "Wrong address. Return to sender?" A: Yes.
Q: Is that your handwriting?
A: No, it's not.
Q: Do you know who[se] handwriting it is?
A: I don't know.
Q: Do you know anyone in your household who would've written that on a document received by - sent by my office?
A: I don't know.
Q: Can you turn to the next document. It's made out to Mostafa Niknafs.
It's a smaller envelope.
The Court: Could I see that first document? Hand it to me.
(Document provided to the Court.)
• .
By Mr. Bechtel:
Q: Now do you see the handwriting on there that says, "Not here. Return to sender"?
A: Yes.
Q: Is that your handwriting?
A: No, it's not.
The Court: Let me see that document.
(Document provided to the Court.)
By Mr. Bechtel:
Q: Do you know who[se] handwriting it is?
A: Don't know.
The Court: Well, this is your address isn't it? 4 Secret Cove?
The Witness: Yes, it is.
The Court: Well, who's writing this, then?
The Witness: I don't know.
The Court: Well, who lives there?
The Witness: Me and my wife.
The Court: Anybody else?
The Witness: No.
The Court: Then who's writing ...

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