Opinion

Regional Local Union Nos. 846 and 847, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO v. LSRI, LLC

Court
District Court, D. Oregon
Filed
Nov 18, 2022
Cited by
0 cases
Authority
More cited than 28.7%

“A person is not bound by a judgment in a litigation to which he or she has not been made a party by service of process.”

How later courts described this case

  • “A person is not bound by a judgment in a litigation to which he or she has not been made a party by service of process.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

REGIONAL LOCAL UNION NOS. 846 and No. 3:22-cv-01473-HZ

847, International Association of Bridge,

Structural, Ornamental and Reinforcing OPINION & ORDER

Iron Workers, AFL-CIO; REGIONAL

DISTRICT COUNCIL WELFARE PLAN AND

TRUST, f/k/a LOCAL 846 REBAR WELFARE

TRUST, By and Through Its Board of Trustees;

REGIONAL DISTRICT COUNCIL RETIREMENT

PLAN AND TRUST, f/k/a REBAR RETIREMENT

PLAN AND TRUST, By and Through Its Board of

Trustees; REGIONAL DISTRICT COUNCIL

TRAINING TRUST, f/k/a LOCAL 846 TRAINING

TRUST, By and Through its Board of Trustees;

REGIONAL DISTRICT COUNCIL VACATION

TRUST FUND, f/k/a LOCAL 846 VACATION

TRUST, By and Through Its Board of Trustees,

Plaintiffs,

v.

LSRI, LLC d/b/a Lone Star Rebar Installers, a

Texas Limited Liability Company,

Defendant.

Cary R. Cadonau

Brownstein Rask

1 SW Columbia Street, Suite 900

Portland, OR 97204

Michael A. Evans

Hartnett Reyes-Jones, LLC

4399 Laclede Avenue

St. Louis, MO 63108

Attorneys for Plaintiffs

HERNÁNDEZ, District Judge:

Plaintiff labor unions and employee benefit plans move for entry of default against

Defendant LSRI, LLC, a Texas limited liability company, pursuant to Rule 55(a) of the Federal

Rules of Civil Procedure. For the following reasons, the Court denies Plaintiffs’ motion.

Plaintiffs filed their complaint on September 30, 2022. Compl., ECF 1. The complaint

alleges violations of provisions of a collective bargaining agreement between the Labor Union

Plaintiffs and Defendant. Id. Plaintiffs allege that Defendant has failed to make contributions to

the Employee Benefit Plan Plaintiffs and failed to remit check-off amounts of union dues to the

Labor Union Plaintiffs. Id. ¶¶ 15-34. The return of service states that Defendant was served on

October 6, 2022. Return of Service, ECF 5. After Defendant failed to appear or answer within 21

days of service, Plaintiffs moved for entry of default. Motion for Entry of Default, ECF 8.

“When a party against whom a judgment for affirmative relief is sought has failed to

plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must

enter the party’s default.” Fed. R. Civ. P. 55(a). In order to be a “party,” the person or entity

against whom default is sought must have been properly served with the summons and

complaint. See Mason v. Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir. 1992) (“A person is

not bound by a judgment in a litigation to which he or she has not been made a party by service

of process.”); Cascade Pension Tr. v. Bates Indus., Inc., No. 6:16-cv-01068-AA, 2017 WL

1172104, at *1 (D. Or. Mar. 28, 2017) (granting motion for entry of default under Rule 55(a)

after determining that service was proper and the defendant never appeared).

Federal Rule of Civil Procedure 4 governs service of the summons and complaint. A

corporation, partnership, or other unincorporated association, such as an LLC, may be served in a

judicial district of the United States in one of two ways. Fed. R. Civ. P. 4(h). First, service may

be made by “following state law for serving a summons in an action brought in courts of general

jurisdiction in the state where the district court is located or where service is made.” Fed. R. Civ.

P. 4(e)(1), 4(h)(1)(A). Second, service may be made “by delivering a copy of the summons and

of the complaint to an officer, a managing or general agent, or any other agent authorized by

appointment or by law to receive service of process and—if the agent is one authorized by statute

and the statute so requires—by also mailing a copy of each to the defendant.” Fed. R. Civ. P.

4(h)(1)(B).

Plaintiffs have failed to show that service was proper. Their memorandum in support of

their motion for default states that “Defendant was served with the complaint on October 6,

2022.” Pl. Mem. 2, ECF 8-1. Plaintiffs did not submit a declaration regarding service, instead

referring the Court to the return of service. Id. In her sworn affidavit of personal service, the

process server affirms that she

personally delivered a true and correct copy of the Summons; Complaint; Civil

Cover Sheet; and Civil Case Assignment Order to Lone Star Rebar Installers

b/s Leo Castro, the business owner, at the address of 4117 N. Rudd St. Burleson,

Tx. 76028 on October 6, 2022 at 5:14 PM in the county of Johnson with the date

of service endorsed thereon by me, and informed said person of the contents therein,

in compliance with the Rules of Civil Procedure.

Return of Service. The summons lists the same address for Defendant. ECF 3. However,

Plaintiffs’ certificate of service on their motion for default lists Defendant’s address as 417 N

Rudd St., Burleson, TX 76028. Pl. Mot. 2 (emphasis added). The collective bargaining

agreement appended to the complaint also lists the street number as 417, not 4117. Compl. Ex. A

at 18. On the record before it, the Court cannot be confident that Defendant was properly served

with the summons and complaint. Because Plaintiffs have failed to show proper service under

Rule 4(h), default will not be entered. This decision is without prejudice as to a renewed motion

for entry of default.

CONCLUSION

Plaintiffs’ Motion for Entry of Default [8] is DENIED.

IT IS SO ORDERED.

DATED: __N__o_v_e_m__b_e_r _1_8_,_ 2_0_2__2_ ___.

______________________________

MARCO A. HERNÁNDEZ

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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