Opinion
3:20-cv-517-MMA-RBM
09-17-2021
PRODUCE PAY, INC., Plaintiff, v. FVF DISTRIBUTORS, INC., et al., Defendants.
ORDER DIRECTING PLAINTIFF TO PROVIDE STATUS REPORT
HON. RUTH BERMUDEZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE
On September 13, 2021, Plaintiff Produce Pay, Inc. ("Plaintiff) filed a motion to for judgment against Defendants FVF Distributors, Inc. ("FVF") and F. David Avila ("Avila") (collectively "Defendants" or "FVF Defendants") pursuant to California Code of Civil Procedure § 664.6 ("Motion"). (Doc. 62.) Plaintiff seeks entry of a final judgment in the amount of $47,947.50, which is inclusive of the terms of Plaintiff and Defendants' written, executed settlement agreement and Plaintiffs request for attorney's fees and costs.
(Doc. 62 at 1-2; see also Doc. 48-2 at 15-18).
For clarity, the undersigned provides a brief summary of the case's procedural history. This case settled at an early neutral evaluation conference on October 14, 2021. (Doc. 55 at 2.) The parties executed a Settlement Memorandum of Understanding ("MOU"), the terms of which were placed on the record. (Id.) Pursuant to the MOU, Defendants agreed to pay Plaintiff $40,000.00 in installments until July 13, 2021. (Id. At 3 (citing Doc. 48-2 at 9, sec. 1).) The parties subsequently executed a long-form settlement agreement with an October 15, 2020 signature date ("Settlement Agreement"). (Id. (citing Doc. 48-2 at 15-18).) Ultimately, Defendants did not perform pursuant to the terms of the Settlement Agreement, and on February 23, 2021, Plaintiff filed a motion seeking to enforce the Settlement Agreement. (Doc. 48.) On May 18, 2021, the undersigned issued a Report and Recommendation ("R&R"), recommending, in part, that the Court grant Plaintiffs motion and award attorney's fees to Plaintiffs counsel in the amount of $2,250.00. (Doc. 55 at 11.) In the Court's June 9, 2021 Order, District Judge Michael M. Anello adopted the R&R to the extent that it found the Settlement Agreement valid and binding under California law, and to the extent that it found the Agreement provided for the recovery of attorney's fees incurred in enforcing the Agreement. (Doc. 56 at 2.)
On September 16, 2021, counsel for Defendants filed a combined Motion to Withdraw as Counsel pursuant to Civil Local Rule 83.3 and a Notice of Suggestion of Death ("Notice") pursuant to Federal Rule of Civil Procedure 25(a). (Doc. 63.) According to the Declaration of John F. Lenderman in support of the Notice, Defendant Avila passed away on August 26, 2021. (Doc. 63-1 at 1, \2.) The Declaration of Lenderman further provides that Defendant Avila was the controlling officer as to any corporation. (Id. at 2, Tf 6.) Although the Declaration makes a general reference that Avila is survived by a wife and son, the Notice does not formally identify Defendant Avila's successors or representatives nor does it state whether these individuals were properly served with the Notice in the manner provided for in Federal Rule of Civil Procedure 4. See FED. R. Crv. P. 25(a)(1)-(3); see also Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (noting that the party filing a statement of notice of death must serve the statement upon nonparty successors or representatives of the deceased in the manner provided in Rule 4 for service of summons).
At this juncture, the Court is reluctant to issue a report and recommendation on the pending motion to for judgment against Defendants until: (1) a decision is rendered on the pending motion for withdrawal (Doc. 63); and (2) a good-faith attempt to identify Defendant Avila's successors or representatives and effect service on them as provided herein is on file with the Court.
In light of the Statement of Notice of Death (Doc. 63), the undersigned finds it appropriate to ORDER Plaintiff to provide a status report as follows:
1. Pursuant to Federal Rule of Civil Procedure 25(a), on or before October 1, 2021, Plaintiff must file a status report outlining its intention to substitute parties, if any. The report must not exceed five (5) pages.
IT IS SO ORDERED.