Produce Pay, Inc. v. FVF Distributors Inc.

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4 □ 7 □ 8 UNITED STATES DISTRICT COURT □ 9 SOUTHERN DISTRICT OF CALIFORNIA |} PRODUCE PAY, INC., Case No.: 3:20-cv-517-MMA-RBM Plaintift,| ORDER DIRECTING PLAINTIFF TO || Vv. . PROVIDE STATUS REPORT 14 FVF DISTRIBUTORS, INC., et al., 15 Defendants. .

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On September 13, 2021, Plaintiff Produce Pay, Inc. (“Plaintiff”) filed a motion to ||for judgment against Defendants FVF Distributors, Inc. (“FVF”) and F. David Avila || (“Avila”) (collectively “Defendants” or “FVF Defendants’’) pursuant to California Code of || 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’ || 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 ||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 ||}(“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 .

1 || (citing Doc. 48-2 at 9, sec. 1).) The parties subsequently executed a long-form settlement ||agreement with an October 15, 2020 signature date (“Settlement Agreement”). □□□□ (citing Doc. 48-2 at 15-18).) Ultimately, Defendants did not perform pursuant to the terms of the Settlement Agreement, and on February 23, 2021, Plaintiff filed a motion seeking to ||enforce the Settlement Agreement. (Doc. 48.) On May 18, 2021, the undersigned issued ||a Report and Recommendation (“R&R”), recommending, in part, that the Court grant ||Plaintiff’s motion and award attorney’s fees to Plaintiff's counsel in the amount of $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 || binding under California law, and to the extent that it found the Agreement provided for |/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 || Withdraw as Counsel pursuant to Civil Local Rule 83.3 and a Notice of Suggestion of || Death (“Notice”) pursuant to Federal Rule of Civil Procedure 25(a). (Doc. 63.) According || 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 || 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 || representatives nor does it state whether these individuals were properly served with the || Notice in the manner provided for in Federal Rule of Civil Procedure 4. See FED. R. CIV. ||P. 25(a)(1)-(3); see also Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (noting that ||the party filing a statement of notice of death must serve the statement upon nonparty || successors or representatives of the deceased in the manner provided in Rule 4 for service || 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 ||herein is on file with the Court.

3 In light of the Statement of Notice of Death (Doc. 63), the undersigned finds it || 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, ||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 18 . □ 21 .

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