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Employers & Cement Masons #90 Health & Welfare Fund v. Triple M Contracting

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


October 3, 2006

EMPLOYERS & CEMENT MASONS #90 HEALTH & WELFARE FUND AND EMPLOYERS & CEMENT MASONS #90 PENSION FUND, PLAINTIFFS,
v.
TRIPLE M CONTRACTING, INC., AND MIKE AND SARA MONIGER D/B/A TRIPLE M CONTRACTING, DEFENDANTS.

The opinion of the court was delivered by: Herndon, District Judge

ORDER

Previously, Plaintiffs had filed a Request for Entry of Default and also a Motion for Default Judgment (Docs. 9 & 10) for defendants Triple M Contracting, Inc. and Kenneth E. Loy d/b/a Triple M Contracting, Inc. The Court thereafter issued an Order to Show Cause (Doc. 11), asking Plaintiffs to show cause as to how or why Kenneth E. Loy is "doing business as" Triple M Contracting, Inc., for the reason that the Court did not believe it possible for an individual to be "doing business as" a corporate entity.

In response, Plaintiffs filed their First Motion to Amend/Correct Complaint (Doc. 12), explaining that the proper defendants should be Triple M Contracting, Inc. and Mike and Sara Moniger d/b/a Triple M Contracting. Kenneth Loy was listed as the registered agent of Triple M Contracting, Inc. only. However, Plaintiffs were able to uncover the fact that Triple M Contracting, Inc. was involuntarily dissolved on March 1, 2006 and that the owners of said dissolved corporation are Mike and Sara Moniger. The Court granted the Motion to Amend Complaint (Doc. 13). Summons was thereafter issued as to Mike Moniger, Sara Moniger, and Triple M. Contracting, Inc. (Doc. 15). A return of service, dated September 5, 2006, shows on the record for both Mike Moniger and Triple M. Contracting, Inc. (Docs. 16 & 17). The record further reveals Plaintiffs have yet to effect service upon defendant Sara Moniger.

Because Kenneth Loy is no longer a party to the action, nor was he a proper party to the action, Plaintiffs' Request for Entry of Default (Doc. 9) and Motion for Default Judgment (Doc. 10) are hereby FOUND AS MOOT. Defendant Mike Moniger has filed his appearance and also a Motion to Dismiss, by the required deadline of September 25, 2006. However, Triple M Contracting, Inc., has not. Yet, because Plaintiffs' Motions (Doc.s 9 & 10) technically pertained to their initial Complaint, they are further FOUND AS MOOT with respect to defendant Triple M Contracting, Inc. If Plaintiffs wish to seek a default judgment, they may file a similar Motion when appropriate.

IT IS SO ORDERED.

David R. Herndon United States District Judge

20061003

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