Williams Sports Rentals Inc. v. Willis

Opinion

B. OTIS FELDER (CSB No. 177628) CSB Certified Admiralty & Maritime Law Specialist EDELMAN & DICKER LLP 525 Market Street, 17th Floor San Francisco, California 94105-2725 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 Email: Otis.Felder@wilsonelser.com

Attorneys for Petitioner & COUNTER DEFENDANT WILLIAMS SPORTS RENTALS, INC. (“WSR”)

IN RE: COMPLAINT AND PETITION OF ) Case No. 2:17-cv-00653-KJM-JDP WILLIAMS SPORTS RENTALS, INC. AS ) OWNER OF A CERTAIN 2004 YAMAHA ) Hon. Kimberly J. Mueller WAVERUNNER FX 140 FOR ) Chief United States District Judge OF LIABILITY ) STIPULATION FOR ORDER SETTING ) ASIDE DEFAULTS AGAINST THIRD- ) PARTY DEFENDANTS THOMAS SMITH MARIAN LATASHA WILLIS, on behalf of the ) AND BERKELEY EXECUTIVES, INC., Estate of RAESHON WILLIAMS, ) ACKNOWLEDGING SERVICE WITH ) DEADLINE TO ANSWER ON OR BEFORE Respondent/Counter Claimant, ) NOV. 17, 2023 v. ) ) [FRCP 55(c)] Petitioner/Counter Defendant. ) ) ) ) WILLIAMS SPORTS RENTALS, INC., ) Petitioner, Counter Defendant, and ) Third-party Plaintiff, ) ) v. ) ) THOMAS SMITH, KAI PETRICH, ) ZIP, INC., and DOES 1-10, ) ) Third-party Defendants. ) ) ) ) AND RELATED ACTIONS ) WHEREAS, Petitioner Williams Sports Rentals (WSR) commenced these admiralty proceedings under the Limitation of Liability Act (LOLA) 46 U.S.C. § 30529(c), and Admiralty Rule F(3) on March 28, 2017 (Complaint, ECF No. 1); WHEREAS, Petitioner and Third-Party Plaintiff WSR filed a Third-Party Complaint (TPC) (ECF No. 92), including its Exhibit A (Smith’s Rental Agreement with WSR) (ECF No. 92-1), Exhibit B (Smith’s Release and Waiver Form with WSR) (ECF No. 92-2), and Exhibit C (Smith’s Safety Checklist with WSR) (ECF No. 92-3) seeking indemnification and other relief against Third-Party Defendants Thomas Smith (Smith) and his company Berkeley Executives, Inc. (Berkeley) along with others, on February 18, 2020; WHEREAS, no claim or responsive pleading has been filed by either Smith or Berkeley, each having been served, and the Clerk’s entry of default against all non-appearing claimants as to the LOLA proceedings (ECF No. 24), entry of default against Berkeley as to WSR’s TPC (ECF No. 106), and entry of default against Smith as to WSR’s TPC (ECF No. 169); WHEREAS pursuant to the Court’s Minute Order (ECF No. 171), WSR moved for a default judgment to be entered (ECF No. 173) set for hearing for Oct. 19, 2023; WHEREAS Smith and Berkley generally appeared and filed a motion to set aside the default (ECF No. 178) contending improper service, which is set for hearing for Nov. 30, 2023; and WHEREAS the Court continued the hearing on WSR’s motion for default judgment until Nov. 30, 2023 (Minute Order, ECF 179). COMES NOW the parties and stipulate for an Order as follows: 1. Pursuant to Federal Rule of Civil Procedure 55(c), which allows entry of default to be set aside “for good cause” and without resolving the issue of whether service was proper on Smith and Berkeley (see also Ford v. Artiga, 2013 WL 820146, 2013 U.S. Dist. LEXIS 47647, *8 (E.D. Cal. 2013)), the parties stipulate, upon Court approval, to set aside the entry of default against Berkeley as to WSR’s TPC (ECF No. 106), and entry of default against Smith as to WSR’s TPC (ECF No. 169) and take off calendar WSR’s motion for default judgment and Smith and Berkeley’s motion to set aside the defaults; 2. Third-party Defendants Smith and Berkeley shall formally withdraw their motion and associated filed documents to set aside motion to set aside the default (ECF No. 178) contending improper service, which is set for hearing for Nov. 30, 2023. 3. Third-party Defendants Smith and Berkeley shall file their answer(s) to WSR’s TF (ECF No. 92), or before Nov. 17, 2023, each acknowledging by their counsel signature below proper service having been made and each waiving any and all objections to jurisdiction, insufficient process, insufficient service of process, and venue in this pending matter Case No. ] 2:17-cv-00653-KJM-JDP. So Stipulated. Dated: October 31, 2023 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: \ at , A Ase B. Otis Felder Attorneys for Petitioner, Counter Defendant, & Third-Party Plaintiff WILLIAMS SPORTS RENTALS, INC. So Stipulated. M Dated: October 31, 2023 Dianna L. Albane By: Dianna L. Albini Attorneys for Third-Party Defendants THOMAS SMITH & BERKELEY EXECUTIVES, INC STIPULATION FOR ORDER SETTING ASIDE DEFAULT AGAINST

Pursuant to the parties’ stipulation, it is hereby ORDERED that: 1. The Clerk of Court is directed to set aside the entry of defendants Thomas Smith and Berkeley Executives, Inc.’s default. See ECF Nos. 106 & 169. 2. Defendants Smith and Berkeley Executives, Inc.’s motion to set aside entry of their default, ECF No. 178, is deemed withdraw. 3. The November 30, 2023 hearing on defendants Smith and Berkeley Executives, Inc.’s motion is vacated. 4. Defendants Smith and Berkeley Executives, Inc.’s shall file an answer to Williams Sports Rentals third-party complaint by November 17, 2023. IT IS SO ORDERED. / _ Dated: _ November 7, 2023 Q————. JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE