Locals 302 and 612 of the International Union of Operating Engineers Construction Industry Health and Security Fund v. AEI Williams Group Co

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

LOCALS 302 AND 612 OF THE CASE NO. C19-0616JLR INTERNATIONAL UNION OF OPERATING ENGINEERS ORDER DENYING MOTION TO COMPEL AUDIT CONSTRUCTION INDUSTRY HEALTH AND SECURITY FUND, et al., Plaintiffs, v. AEI WILLIAMS GROUP, CO., Defendant.

Before the court is Plaintiffs Locals 302 and 612 of the International Union of Operating Engineers Construction Industry Health and Security Fund, Locals 302 and 612 of the International Union of Operating Engineers-Employers Construction Industry Retirement Fund, and Western Washington Operating Engineers-Employers Training Trust Fund’s (collectively, “Plaintiffs”) motion for an order to compel audit. (Mot. (Dkt. # 6).) The court has considered the motion, the relevant portions of the record, and the applicable law. Being fully advised, the court DENIES the motion.

On April 25, 2019, Plaintiffs filed this action seeking to compel Defendant AEI Williams Group, Co. (“AEI”) to submit to an audit. (See Compl. (Dkt. # 1).) Plaintiffs served the complaint on AEI on May 6, 2019. (Cert. of Serv. (Dkt. # 3).) Because AEI failed to appear or answer the complaint within 21 days of service, Plaintiffs moved for entry of default against AEI on May 30, 2019, and the Clerk entered an order of default against AEI the following day. (See Mot. for Default (Dkt. #4); Order (Dkt. # 5).) After

the Clerk entered default, Plaintiffs filed the current motion. (See generally Mot.) In their motion, Plaintiffs request that the court compel AEI to produce audit documentation that Plaintiffs allege they are entitled to under certain collective bargaining agreements that AEI is a party to. (See id. at 5-8.) In the Ninth Circuit, for purposes of discovery, “a defaulted defendant should be

treated as a non-party.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158-59 (9th Cir. 2010). A non-party to an action may be compelled to produce documents only by a subpoena issued from the court for the district in which the production is to be made. See Fed. R. Civ. P. 34(c), 45. Here, AEI is in default. (See Order.) Thus, Plaintiffs must comply with Federal Rule of Civil Procedure 45 in order to

compel AEI to produce audit documentation. See, e.g., Locals 302 & 612 of Int’l Union of Operating Eng’rs Const. Indus. Health & Sec. Fund v. Delos Santos Const., Inc., No. C10-1396JLR, 2010 WL 4983585, at *1 (W.D. Wash. Dec. 2, 2010). Plaintiffs did not submit evidence that they served Rule 45 subpoenas on AEI. (See generally Mot.) Accordingly, the court DENIES Plaintiffs’ motion for an order to compel audit (Dkt. # 6).

Dated this 24th day of September, 2019. A JAMES L. ROBART United States District Judge