Northwest Administrators, Inc v. JMR Trucking, Inc

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 NORTHWEST CASE NO. C18-1525JLR ADMINISTRATORS INC., 11 ORDER VACATING ORDERS Plaintiff, TO COMPEL AUDIT AND 12 v. SHOW CAUSE

13 JMR TRUCKING, INC., 14 Defendant. 15 This matter comes before the court on Plaintiff Northwest Administrators, Inc.’s 16 (“NAI”) motion for an order to show cause (Mot. (Dkt. # 13)), and the court’s order 17 granting that motion (OSC (Dkt. # 14)). 18 On October 17, 2018, NAI filed this action seeking to compel Defendant JMR 19 Trucking, Inc. (“JMR”) to submit to an audit of its books and records in order to ensure 20 that JMR is in compliance with the terms of a collective bargaining agreement between 21 JMR and Local 174 of the International Brotherhood of Teamsters. (See Compl. (Dkt. 22 1 # 1) at 2-4.) NAI served JMR with process on November 15, 2018, via personal service 2 on Jannie Richardson, the wife of JMR’s owner, at JMR’s principal place of business.1

3 (11/27/28 Cert. of Serv.) Because JMR failed to appear or answer the complaint within 4 21 days of service, the Clerk entered an order of default against JMR on December 28, 5 2018. (12/28/18 Order (Dkt. # 6).) 6 On April 15, 2019, after JMR defaulted, the court granted NAI’s motion to compel 7 JMR to submit to an audit and directed JMR to make certain payroll records available to 8 NAI within 15 days of entry of the court’s order. (See 4/15/19 Order (Dkt. # 10) at 2.)

9 NAI served that order on JMR on May 24, 2019. (7/25/19 Cert. of Serv.) According to 10 NAI, JMR failed to provide payroll records in compliance with the court’s order. (Mot. 11 at 3.) NAI moved for an order to show cause why Ms. Richardson should not be held in 12 contempt of court for her failure to comply with the order that she was served with. (Id. 13 at 1.) On August 23, 2019, the court granted NAI’s motion and ordered both Ms.

14 Richardson and Defendant JMR Trucking, Inc. (“JMR”) to show cause on or before 15 //

16 1 In NAI’s motion for an order to show cause, NAI claimed that Ms. Richardson identified herself as the Vice President of JMR. (See Mot. at 1.) Ms. Richardson denies that 17 allegation. (See Richardson Resp. to OSC (Dkt. # 17) at 1.) Regardless, the evidence Ms. Richardson submitted confirms that she is the spouse of JMR’s registered agent and that JMR’s 18 principal place of business and the location of its registered agent is 11371 SE 299th Ct., Auburn, WA 98092—the same address at which Ms. Richardson has been personally served 19 throughout this matter. (See id. at 1-2; 11/27/18 Cert. of Serv. (Dkt. # 4); 7/25/19 Cert of Serv. (Dkt. #11).) Even if Ms. Richardson is not the Vice President of JMR, service was proper under 20 Federal Rule of Civil Procedure 4(h)(1)(A) because it satisfies Washington law. See Fed. R. Civ. P. 4(h)(1)(a). Under RCW 4.28.080(9), a party may serve the “president or other head of the company or corporation” or the “registered agent” of the company, and Washington courts have 21 held that service on a registered agent’s spouse at the registered agent’s home is sufficient under a closely-related service statute. See Reiner v. Pittsburg Des Moines Corp., 680 P.2d 55, 58 22 (Wash. 1984). 1 September 26, 2019, why they should not be held in civil contempt. (OSC at 5-6.) Ms. 2 Richardson filed a response to the order to show cause and NAI filed a reply. (See

3 Richardson Resp. to OSC; NAI Reply (Dkt. # 20).) 4 Having further reviewed the record and the relevant case law, the court concludes 5 that it must vacate its prior orders. In the Ninth Circuit, for purposes of discovery, “a 6 defaulted defendant should be treated as a non-party.” Jules Jordan Video, Inc. v. 7 144942 Canada Inc., 617 F.3d 1146, 1158-59 (9th Cir. 2010). A person not a party to an 8 action may be compelled to produce documents only by a subpoena issued from the court

9 for the district in which the production is to be made. Fed. R. Civ. P. 34(c), 45. Here, 10 JMR is in default. (12/28/18 Order.) Thus, NAI must comply with Federal Rule of Civil 11 Procedure 45 in order to compel JMR to produce audit documentation. See, e.g., Locals 12 302 & 612 of Int’l Union of Operating Eng’rs Const. Indus. Health & Sec. Fund v. Delos 13 Santos Const., Inc., No. C10-1396JLR, 2010 WL 4983585, at *1 (W.D. Wash. Dec. 2,

14 2010). NAI did not submit evidence that it served Rule 45 subpoenas on JMR. (See 15 generally Mot.) Accordingly, the court VACATES its order to compel audit (Dkt. # 10) 16 and its order granting NAI’s motion for an order to show cause (Dkt. # 14), and DENIES 17 NAI’s motion for an order to compel audit (Dkt. # 7) and NAI’s motion for an order to 18 show cause (Dkt. # 13). The court also STRIKES its September 26, 2019 show cause

19 hearing. Finally, the court ORDERS NAI to make all reasonable efforts to serve JMR 20 // 21 // 22 // 1 and Ms. Richardson with a copy of this order by 5:00 p.m. on September 25, 2019, and to 2 file proof of such service on the court’s docket.

3 Dated this 24th day of September, 2019. 4 A 5 6 JAMES L. ROBART 7 United States District Judge

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