Produce Pay, Inc. v. FVF Distributors Inc.

Opinion

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4 □ 5 6 7 □ 8 UNITED STATES DISTRICT COURT □ 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} PRODUCE PAY, INC., Case No.: 3:20-cv-517-MMA-RBM Plaintift,| ORDER DIRECTING PLAINTIFF TO 13 || Vv. . PROVIDE STATUS REPORT 14 FVF DISTRIBUTORS, INC., et al., 15 Defendants. . 16 . On September 13, 2021, Plaintiff Produce Pay, Inc. (“Plaintiff”) filed a motion to 18 ||for judgment against Defendants FVF Distributors, Inc. (“FVF”) and F. David Avila 19 || (“Avila”) (collectively “Defendants” or “FVF Defendants’’) pursuant to California Code of 20 || Civil Procedure § 664.6 (“Motion”). (Doc. 62.) Plaintiff seeks entry of a final judgment 21 the amount of $47,947.50, which is inclusive of the terms of Plaintiff and Defendants’ 22 || written, executed settlement agreement and Plaintiffs request for attorney’s fees and costs. 23 ||(Doc. 62 at 1-2; see also Doc. 48-2 at 15-18). 24 For clarity, the undersigned provides a brief summary of the case’s procedural 25 ||history. This case settled at an early neutral evaluation conference on October 14, 2021. 26 ||(Doc. 55 at 2.) The parties executed a Settlement Memorandum of Understanding 27 ||}(“MOU”), the terms of which were placed on the record. (/d.) Pursuant to the MOU, 28 Defendants agreed to pay Plaintiff $40,000.00 in installments until July 13, 2021. (/d. at 3

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1 || (citing Doc. 48-2 at 9, sec. 1).) The parties subsequently executed a long-form settlement 2 ||agreement with an October 15, 2020 signature date (“Settlement Agreement”). □□□□ (citing 3 Doc. 48-2 at 15-18).) Ultimately, Defendants did not perform pursuant to the terms of the 4 Settlement Agreement, and on February 23, 2021, Plaintiff filed a motion seeking to 5 ||enforce the Settlement Agreement. (Doc. 48.) On May 18, 2021, the undersigned issued 6 ||a Report and Recommendation (“R&R”), recommending, in part, that the Court grant 7 ||Plaintiff’s motion and award attorney’s fees to Plaintiff's counsel in the amount of 8 $2,250.00. (Doc. 55 at 11.) In the Court’s June 9, 2021 Order, District Judge Michael M. 9 || Anello adopted the R&R to the extent that it found the Settlement Agreement valid and 10 || binding under California law, and to the extent that it found the Agreement provided for 11 |/the recovery of attorney’s fees incurred in enforcing the Agreement. (Doc. 56 at 2.) 12 On September 16, 2021, counsel for Defendants filed a combined Motion to 13 || Withdraw as Counsel pursuant to Civil Local Rule 83.3 and a Notice of Suggestion of 14 || Death (“Notice”) pursuant to Federal Rule of Civil Procedure 25(a). (Doc. 63.) According 15 || to the Declaration of John F. Lenderman in support of the Notice, Defendant Avila passed 16 away on August 26, 2021. (Doc. 63-1 at 1, 2.) The Declaration of Lenderman further 17 || provides that Defendant Avila was the controlling officer as to any corporation. (/d. at 2, 18 6.) Although the Declaration makes a general reference that Avila is survived by a wife 19 son, the Notice does not formally identify Defendant Avila’s successors or 20 || representatives nor does it state whether these individuals were properly served with the 21 || Notice in the manner provided for in Federal Rule of Civil Procedure 4. See FED. R. CIV. 22 ||P. 25(a)(1)-(3); see also Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (noting that 23 ||the party filing a statement of notice of death must serve the statement upon nonparty 24 || successors or representatives of the deceased in the manner provided in Rule 4 for service 25 || of summons). 26 At this juncture, the Court is reluctant to issue a report and recommendation on the 27 pending motion to for judgment against Defendants until: (1) a decision is rendered on the 28 pending motion for withdrawal (Doc. 63); and (2) a good-faith attempt to identify

1 Defendant Avila’s successors or representatives and effect service on them as provided 2 ||herein is on file with the Court. 3 In light of the Statement of Notice of Death (Doc. 63), the undersigned finds it 4 || appropriate to ORDER Plaintiff to provide a status report as follows: □ 5 1. Pursuant to Federal Rule of Civil Procedure 25(a), on or before October 1, 6 ||2021, Plaintiff must file a status report outlining its intention to substitute parties, if any. 7 || The report must not exceed five (5) pages. 8 IT IS SO ORDERED. 9 || DATE: September 17, 2021

1 ON. RUTH BE EZ MONTENEGRO UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 . □ 19 20 21 . 22 23 24 . 25 □ 26 oe 27 || 28