Williams Sports Rentals Inc. v. Willis ( 2023 )

1 B. OTIS FELDER (CSB No. 177628) CSB Certified Admiralty & Maritime Law Specialist 2 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 3 525 Market Street, 17th Floor San Francisco, California 94105-2725 4 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 5 Email: Otis.Felder@wilsonelser.com 6 Attorneys for Petitioner & COUNTER DEFENDANT WILLIAMS SPORTS RENTALS, INC. (“WSR”) 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 IN ADMIRALTY 11 IN RE: COMPLAINT AND PETITION OF ) Case No. 2:17-cv-00653-KJM-JDP WILLIAMS SPORTS RENTALS, INC. AS ) 12 OWNER OF A CERTAIN 2004 YAMAHA ) Hon. Kimberly J. Mueller WAVERUNNER FX 140 FOR ) Chief United States District Judge 13 EXONERATION FROM OR LIMITATION ) OF LIABILITY ) STIPULATION FOR ORDER SETTING 14 ) ASIDE DEFAULTS AGAINST THIRD- ) PARTY DEFENDANTS THOMAS SMITH 15 MARIAN LATASHA WILLIS, on behalf of the ) AND BERKELEY EXECUTIVES, INC., Estate of RAESHON WILLIAMS, ) ACKNOWLEDGING SERVICE WITH 16 ) DEADLINE TO ANSWER ON OR BEFORE Respondent/Counter Claimant, ) NOV. 17, 2023 17 v. ) ) [FRCP 55(c)] 18 WILLIAMS SPORTS RENTALS, INC., ) Petitioner/Counter Defendant. ) 19 ) ) 20 ) WILLIAMS SPORTS RENTALS, INC., ) 21 Petitioner, Counter Defendant, and ) Third-party Plaintiff, ) 22 ) v. ) 23 ) THOMAS SMITH, KAI PETRICH, ) 24 BERKELEY EXECUTIVES, INC., ) ZIP, INC., and DOES 1-10, ) 25 ) Third-party Defendants. ) 26 ) ) 27 ) AND RELATED ACTIONS ) 1 WHEREAS, Petitioner Williams Sports Rentals (WSR) commenced these admiralty 2 proceedings under the Limitation of Liability Act (LOLA) 46 U.S.C. § 30529(c), and Admiralty 3 Rule F(3) on March 28, 2017 (Complaint, ECF No. 1); 4 WHEREAS, Petitioner and Third-Party Plaintiff WSR filed a Third-Party Complaint (TPC) 5 (ECF No. 92), including its Exhibit A (Smith’s Rental Agreement with WSR) (ECF No. 92-1), 6 Exhibit B (Smith’s Release and Waiver Form with WSR) (ECF No. 92-2), and Exhibit C (Smith’s 7 Safety Checklist with WSR) (ECF No. 92-3) seeking indemnification and other relief against 8 Third-Party Defendants Thomas Smith (Smith) and his company Berkeley Executives, Inc. 9 (Berkeley) along with others, on February 18, 2020; 10 WHEREAS, no claim or responsive pleading has been filed by either Smith or Berkeley, 11 each having been served, and the Clerk’s entry of default against all non-appearing claimants as to 12 the LOLA proceedings (ECF No. 24), entry of default against Berkeley as to WSR’s TPC (ECF No. 13 106), and entry of default against Smith as to WSR’s TPC (ECF No. 169); 14 WHEREAS pursuant to the Court’s Minute Order (ECF No. 171), WSR moved for a default 15 judgment to be entered (ECF No. 173) set for hearing for Oct. 19, 2023; 16 WHEREAS Smith and Berkley generally appeared and filed a motion to set aside the 17 default (ECF No. 178) contending improper service, which is set for hearing for Nov. 30, 2023; and 18 WHEREAS the Court continued the hearing on WSR’s motion for default judgment until 19 Nov. 30, 2023 (Minute Order, ECF 179). 20 COMES NOW the parties and stipulate for an Order as follows: 21 1. Pursuant to Federal Rule of Civil Procedure 55(c), which allows entry of default to 22 be set aside “for good cause” and without resolving the issue of whether service was proper on 23 Smith and Berkeley (see also Ford v. Artiga, 2013 WL 820146, 2013 U.S. Dist. LEXIS 47647, *8 24 (E.D. Cal. 2013)), the parties stipulate, upon Court approval, to set aside the entry of default against 25 Berkeley as to WSR’s TPC (ECF No. 106), and entry of default against Smith as to WSR’s TPC 26 (ECF No. 169) and take off calendar WSR’s motion for default judgment and Smith and Berkeley’s 27 motion to set aside the defaults; 1 2. Third-party Defendants Smith and Berkeley shall formally withdraw their motion 2 || and associated filed documents to set aside motion to set aside the default (ECF No. 178) 3 || contending improper service, which is set for hearing for Nov. 30, 2023. 4 3. Third-party Defendants Smith and Berkeley shall file their answer(s) to WSR’s TF 5 || (ECF No. 92), or before Nov. 17, 2023, each acknowledging by their counsel signature below 6 || proper service having been made and each waiving any and all objections to jurisdiction, 7 || insufficient process, insufficient service of process, and venue in this pending matter Case No. 8 |] 2:17-cv-00653-KJM-JDP. 9 So Stipulated. 10 Dated: October 31, 2023 WILSON, ELSER, MOSKOWITZ, 12 EDELMAN & DICKER LLP 13 By: \ at , A Ase B. Otis Felder 14 Attorneys for Petitioner, Counter Defendant, & Third-Party Plaintiff 15 WILLIAMS SPORTS RENTALS, INC. 16 So Stipulated. M Dated: October 31, 2023 18 WADE LAW GROUP 19 Dianna L. Albane By: 20 Dianna L. Albini Attorneys for Third-Party Defendants 21 THOMAS SMITH & BERKELEY EXECUTIVES, INC 22 23 24 25 26 27 28 STIPULATION FOR ORDER SETTING ASIDE DEFAULT AGAINST 1 ORDER 2 Pursuant to the parties’ stipulation, it is hereby ORDERED that: 3 1. The Clerk of Court is directed to set aside the entry of defendants Thomas Smith and 4 || Berkeley Executives, Inc.’s default. See ECF Nos. 106 & 169. 5 2. Defendants Smith and Berkeley Executives, Inc.’s motion to set aside entry of their 6 || default, ECF No. 178, is deemed withdraw. 7 3. The November 30, 2023 hearing on defendants Smith and Berkeley Executives, Inc.’s 8 || motion is vacated. 9 4. Defendants Smith and Berkeley Executives, Inc.’s shall file an answer to Williams 10 || Sports Rentals third-party complaint by November 17, 2023. 11 12 || IT IS SO ORDERED. 13 / _ 14 || Dated: _ November 7, 2023 Q————. JEREMY D. PETERSON 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28