Carpenters Pension Trust Fund for Northern California v. MGM's Cabinet Installation Services et al

Filing 56

ORDER CONTINUING CASE MANAGEMENT CONFERENCE [re 55 Status Report, filed by Carpenters Pension Trust Fund for Northern California]. Case Management Statement due by 8/25/2011. Further Case Management Conference set for 9/1/2011 11:00 AM in Courtroom 9, 19th Floor, San Francisco. Signed by Judge William Alsup on 7/22/2011. (whasec, COURT STAFF) (Filed on 7/22/2011)

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BLYTHE MICKELSON, Bar No. 095506
ROBERTA D. PERKINS, Bar No. 153074
WEINBERG, ROGER & ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Suite 200
Alameda, California 94501-1091
Telephone [phone]
Fax [phone]

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Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARPENTERS PENSION TRUST FUND FOR )
NORTHERN CALIFORNIA,
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Plaintiff,
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v.
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MGM’S CABINET INSTALLATION
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SERVICES and MICHAEL GORDON
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MOXLEY,
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Defendants.
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)

No.

CV 08-1164 WHA

STATUS REPORT & REQUEST TO
CONTINUE CASE MANAGEMENT
CONFERENCE ; AND ORDER
Date: August 4, 2011
Time: 3:00 p.m.
Courtroom: 9, 19th Floor
Hon. William H. Alsup

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Plaintiff Carpenters Pension Trust Fund for Northern California provides the following
information regarding the case management conference currently set for August 4, 2011.
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A case management conference was held on June 16, 2011. Counsel appeared for

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Plaintiff Carpenters Pension Trust Fund for Northern California (“Pension Fund”). Michael

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Moxley appeared in propria persona for himself and MGM’s Cabinet Installation Services.

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2.

In this action the Pension Fund seeks to recover a withdrawal liability obligation

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arising under ERISA section 4201, 29 U.S.C. § 1381. While this matter was pending, Mr. Moxley

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filed for Chapter 7 bankruptcy protection. Among the debts sought to be discharged was the

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assessed withdrawal liability. The Pension Fund challenged the discharge of the withdrawal

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liability obligation in an adversary proceeding. The Bankruptcy Court denied the Pension Fund’s

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motion for summary judgment, finding that the withdrawal liability obligation did not come within

WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001

Status Report & Request To Continue Case Management Conference

CV 08-1164 WHA

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11 U.S.C. § 523(a)(4) and was properly subject to discharge. That decision was subsequently

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affirmed by the Honorable Richard Seeborg in Carpenters Pension Trust Fund v. Michael Moxley,

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et al., U.S.D.C. Northern District No. 3:10-CV-756 RS, ECF No. 17.1
3.

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On April 29, 2011, the Pension Trust Fund filed an appeal of Judge Seeborg’s order,

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Carpenters Pension Trust Fund for Northern California v. Michael G. Moxley, aka MGM Cabinet

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Installation Services, Ninth Circuit No. 11-16133. The Ninth Circuit scheduled a mediation

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conference for June 23, 2011. That conference was continued until July 11, 2011, and took place

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on that date.
4.

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Because the issue before the Ninth Circuit, i.e., the bankruptcy discharge of an

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assessment of withdrawal liability and the subsequent confirmation of that order by the District

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Court on appeal, is dispositive of the Pension Fund’s ability to maintain this collection action, the

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Pension Fund requested a further Case Management Conference be scheduled so the parties could

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explore a global settlement of all issues with the Circuit Mediator and potentially schedule a date

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for mediation. The Court graciously granted that request.
5.

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During the July 11 mediation conference, the parties agreed to an informal

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exchange of documents containing financial information which would allow the Pension Fund to

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assess the possibility of a global settlement of all claims, including this action. The Pension Fund’s

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information request is to be provided by Monday, July 25, 2011, after which Moxley/MGM is to

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provide responsive information. As a result of the exchange of information, the Circuit mediator

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vacated the briefing schedule set by the Ninth Circuit. A true and correct copy of the Circuit

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Mediator’s Order is attached hereto as Exhibit 1 and incorporated herein by reference.

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WEINBERG, ROGER &
ROSENFELD
A Professional Corporation
1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001

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The recent decision in Stern v. Marshall, 564 U.S. ___, 131 S.Ct. 63, 177 L.Ed.2d 1152, 201
U.S. LEXIS 4791(June 23, 2011), may affect Judge Seeborg’s approval of the Bankruptcy
Court’s decision. In Stern, the Supreme Court held a bankruptcy court lacked jurisdiction to
enter a final judgment of nondischargeability because it was not an Article III court under the
Constitution. While not an issue in this action, the Stern decision raises the potential for setting
aside the bankruptcy court’s discharge of the withdrawal liability debt on the grounds the
bankruptcy court lacked jurisdiction to enter judgment based on non-bankruptcy law, in this
case, ERISA.

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CV 08-1164 WHA

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As represented to the Court on June 16, 2011, the Pension Fund remains committed

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to fully exploring the potential of a global resolution of the claims against Moxley and MGM’s

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Cabinets, which would include this case. Given the dates set by the Ninth Circuit Mediator, a

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mediation session will not be scheduled or completed before the next case management conference

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on August 4, 2011. The Pension Fund anticipates a mediation date will be set during the next

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conference with the Ninth Circuit Mediator.

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For the foregoing reasons, the Pension Fund respectfully requests the August 4,

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2011 be continued for approximately 45-days, or until mid-September 2011, to allow the parties to

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attempt to resolve this matter through the Ninth Circuit’s mediation program. Mr. Moxley has no

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objection to the August 4, 2011 case management conference being continued.

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Dated: July 21, 2011
WEINBERG, ROGER & ROSENFELD
A Professional Corporation

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By: /s/ Roberta D. Perkins
BLYTHE MICKELSON
ROBERTA D. PERKINS
Attorneys for Plaintiff Carpenters Pension Trust
Fund for Northern California

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110397/628890

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ORDER

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The case management conference is CONTINUED to September 1, 2011, at 11:00 a.m.

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Please file a case management statement at least seven days prior.

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Dated: July 22, 2011.

1001 Marina Village Parkway
Suite 200
Alameda, CA 94501-1091
510.337.1001

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CV 08-1164 WHA