Free Motion for Attorney Fees - District Court of California - California

Case 3:07-cv-05095-SI

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1 NEELAM CHANDNA (CSB 192972) HIRSCH ADELL (CSB 34208), and 2 J. DAVID SACKMAN (CSB 106703), Members of REICH, ADELL & CVITAN 3 A Professional Law Corporation 3550 Wilshire Blvd., Suite 2000 4 Los Angeles, California 90010 Telephone: (213) 386-3860 5 Facsimile: (213) 386-5583 E-Mail: [email protected]; [email protected] 6 Attorneys for PLAINTIFFS TRUSTEES OF THE BAKERY & CONFECTIONERY 7 WESTERN CONFERENCE DENTAL FUND 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 10 11 TRUSTEES OF THE BAKERY & ] CONFECTIONERY WESTERN CONFERENCE ] 12 DENTAL FUND, ] ] 13 ] Plaintiffs, ] 14 ] ] v. 15 ] ] 16 NELDAM'S DANISH BAKERY, INC. ] ] 17 ] Defendant. ] 18 19 20 21 22 23 NOTICE is hereby given that the motion of plaintiffs Trustees 24 of the Bakery & Confectionery Western Conference Dental Fund, for 25 entry of default judgment, shall be heard at the above date and 26 time, in Courtroom 10 of this Court, located at 450 Golden Gate 27 Avenue, San Francisco, California 94102. 28 -1154 092 .1

CASE NO. C07 5095 SI NOTICE OF MOTION AND MOTION FOR PLAINTIFFS' TRUSTEES OF THE BAKERY & CONFECTIONERY WESTERN CONFERENCE DENTAL FUND AGAINST DEFENDANT NELDAM'S DANISH BAKERY, INC. AND MOTION TO ENLARGE TIME TO FILE MOTION FOR ATTORNEY'S FEES AND BILL OF COSTS; MEMORANDUM OF POINTS AND AUTHORITIES [Fed.R.Civ.P. 55(b)(2); Local Rules 6-3 and 54-6(a)] Date: February 22, 2008 Time: 9:00 a.m. Ctrm: 10 450 Golden Gate Ave. San Francisco, CA 94102

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1

Plaintiffs move for:

(1) entry of default judgment pursuant

2 to Rule 55(b)(2) of the Federal Rules of Civil Procedure, as more 3 fully stated in the Proposed Judgment, against defendant NELDAM'S 4 DANISH BAKERY, INC. (Neldam's), a California corporation; and (2) 5 an enlargement of up to 21 days to file Plaintiffs' Motion for 6 Attorney's Fees and Bill of Costs pursuant to Local Rules 6-3 and 7 54-6(a). 8 This motion is based on the pleadings and papers of this

9 case, the following Memorandum of Points and Authorities, 10 Declaration of Neelam Chandna, the Proposed Judgment, and such 11 further evidence and argument as may be presented at the hearing 12 on this matter. 13 No conference of counsel need be made, because defendant

14 Nelam's has not made an appearance in this matter and its default 15 was entered on November 29, 207, by the Clerk of the Court. 16 17 18 Date: January 7, 2008 19 20 21 22 23 24 25 26 MEMORANDUM OF POINTS AND AUTHORITIES I. Introduction By: /s/ NEELAM CHANDNA Attorneys for Plaintiffs REICH, ADELL & CVITAN A Professional Law Corporation Respectfully Submitted,

Plaintiffs Trustees of the Bakery & Confectionery Western This

27 Conference Dental Fund (Fund) are fiduciaries of the Fund.

28 action was filed to collect delinquent fringe benefits owing to -2154 092 .1

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1 the Fund by defendant Neldam's Danish Bakery, Inc. (Neldam's). 2 [Complaint ¶¶ 1 and 3]. 3 On November 29, 2007, the Clerk of the Court entered the Plaintiffs now fie this

4 default of Neldam's. [Docket No. 9].

5 motion for entry of default judgment under Fed. R. Civ. P. 6 55(b)(2) against defendant Neldam's. 7 8 9 II. Summary of Facts

Defendant Neldam's Danish Bakery, Inc. (hereinafter referred

10 to as "Employer" or "Neldam's") is a California corporation and an 11 employer within the meaning of the Employee Retirement Income 12 Security Act of 1974 (ERISA), § 3(5), 29 U.S.C. § 1002(5). 13 [Complaint §§ 3 and 4]. Employer entered into a collective

14 bargaining agreement (Agreement) with the Bakery, Confectionery, 15 Tobacco Workers, and Grain Millers International Union, Local No. 16 125, AFL-CIO (Union), covering certain employees of the Employer 17 at its bakery in Oakland, California. 18 [Complaint § 4].

The Agreement provides that the Employer must contribute

19 $51.50 each month to the Dental Fund for each covered employee of 20 the Employer covered by the Agreement. In turn, the Agreement and

21 Declaration of Trust for the Dental Fund (Trust Agreement) 22 provides that Employer contributions are delinquent by the 25th of 23 in the month following the month in which the employee worked. 24 [Complaint, ¶ 5]. 25 The Employer also agreed to be bound by the Trust Agreement,

26 which mandates liquidated damage of the greater of interest on the 27 unpaid contributions at 12% per annum or an amount equal to 20% of 28 the delinquent contributions, along with interest at the rate of -3154 092 .1

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1 12% per year, plus the Fund's audit expenses, collection costs, 2 attorney fees and costs. 3 4 5 A. 6 7 Default having been entered against Employer, judgment by III. Argument [Complaint, ¶ 6].

Default Judgment May Be Entered Against Employer.

8 default may be entered by this Court pursuant to Rule 55(b)(2) of 9 the Federal Rules of Civil Procedure. "Upon entry of default, the 10 facts alleged by the plaintiff in this complaint are deemed 11 admitted." 10 Moore's Federal Practice § 55.12[1] at 55-18 (3d Ed. 12 1997). See also, Television Systems, Inc. v. Heidenthal, 826 F.2d

13 915, 917 (9th Cir. 1987); Danning v. Lavine, 572 F.2d. 1386, 1388 14 (9th Cir. 1978). 15 necessary. 16 Defendant is a corporate entity, not a natural person; No further proof of the those facts are

17 therefore, it is not entitled to the benefits of the Soldiers and 18 Sailors Civil Relief Act of 1940. 19 (Chandna Decl.) ¶¶ 2 and 3]. 20 On October 16, 2007, defendant NELDAM'S DANISH BAKERY, INC. [Declaration of Neelam Chandna

21 was served by substituted service of the Summons, Complaint, and 22 other court papers pursuant to California Code of Civil Procedure 23 §415.20 and Fed.R.Civ.P. §4(e)(1). Service was effected on 24 Defendant by delivery of said documents to Neldam's to the person 25 apparently in charge at Neldam's office located at 3401 Telegraph 26 Avenue, Oakland, California 94609, with mailing completed on 27 October 23, 2007. Plaintiffs subsequently requested and obtained

28 entry of Neldam's default by the Clerk on November 29, 2007. -4154 092 .1

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1 [Chandna Decl. ¶ 4]. 2 3 B. 4 5 Claim for Delinquent Contributions, Interest, and Liquidated Damages Since January 2007, the Employer has failed to report its

6 covered employees under the Agreement and has failed to pay the 7 contributions required on behalf of such employees to the Dental 8 Fund, in the amount of $5,253.00. Thirteen eligible employees

9 were employed from January through June 2007 and 12 eligible 10 employees have been employed by the Employer through at least 11 September 25, 2007. Thus, the sum of $669.50 ($51.50 x 13 =

12 $669.50) is due for each of the months from January through June 13 2007, and the sum of $618 ($51.50 x 12 = $618) is due for the 14 months of July and August 2007. 15 $5,253.00. 16 [Complaint, ¶ 7]. These eight months' totals equal

Based on the Agreement and Trust Agreement, the Employer also

17 owes interest to the Fund of at least $258.89 and liquidated 18 damages to the Fund of at least $1,050.60. 19 Prayer for Relief at ¶¶ 8(b) and (c)]. 20 21 22 C. Plaintiffs are Entitled to Attorney's Fees and Costs. In their complaint, plaintiffs requested that attorney's fees [Complaint at ¶ 6 and

23 and costs be added to the judgment. [Complaint at ¶ 6, and Prayer 24 at ¶ 8(d)]. An award of attorney's fees and costs is mandated by See, Northwest

25 ERISA § 502(g)(2)(D), 29 U.S.C. § 1132(g)(2)(D).

26 Administrators, Inc. v. Albertson's, Inc., 104 F.3d 253, 257 (9th 27 Cir. 1996); Operating Engineers Pension Trust v. A-C Co., 859 F.2d 28 1336, 1342 (9th Cir. 1988); Operating Engineers Pension Trust v. -5154 092 .1

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1 Beck Engineering & Surveying Co., 746 F.2d 557, 569 (9th Cir. 2 1984). 3 Plaintiffs will file a separate motion for attorney's fees,

4 and a bill of costs, after judgment is entered pursuant to federal 5 and local rules of civil procedure. Pursuant to Federal Rule of

6 Civil Procedure § 54(d)(2), the amount of attorney's fees may be 7 determined by separate motion after judgment is entered. Pursuant

8 to Local Rule 54-1, a Bill of Costs may also be filed after 9 judgment is entered. Plaintiffs ask for twenty-one days to file

10 their motion for attorney's fees and Bill of Costs from the date 11 of entry of judgment. 12 13 14 15 In view of the foregoing, Plaintiffs respectfully request IV. Conclusion

16 that judgment be entered against defendant Neldam's Danish Bakery, 17 Inc. 18 19 20 21 22 Dated: ___________________ 23 24 25 26 PROOF OF SERVICE 27 28 -6154 092 .1

Respectfully Submitted, REICH, ADELL & CVITAN A Professional Law Corporation

/s/ NEELAM CHANDNA Attorneys for Plaintiffs

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1 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 2 3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the 4 within action; my business address is 3550 Wilshire Blvd., Suite 2000, Los Angeles, California 90010. 5 On January 7, 2008, I served the foregoing document described 6 as NOTICE OF MOTION AND MOTION FOR PLAINTIFFS' TRUSTEES OF THE BAKERY & CONFECTIONERY WESTERN CONFERENCE DENTAL FUND AGAINST 7 DEFENDANT NELDAM'S DANISH BAKERY, INC. AND MOTION TO ENLARGE TIME TO FILE MOTION FOR ATTORNEY'S FEES AND BILL OF COSTS; MEMORANDUM OF 8 POINTS AND AUTHORITIES on the interested parties(s) by placing. 9 the original 10 enclosed in a sealed envelope and addressed as set forth: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7154 092 .1

X

a true copy thereof

NELDAM'S DANISH BAKERY 3401 Telegraph Avenue Oakland, CA 94609 x (By Mail) As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. (By Fax) The facsimile machine I used complied with California Rules of Court 2003(3) and no error was reported by the machine. x (Federal Court) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on January 7, 2008, at Los Angeles, California. /s/ Maria Hoang