Board of Trustees of the Laborers Health and Welfare Trust Fund for Northern California et al v. Cal-Kirk Lanscaping Inc

Filing 44

STIPULATION AND ORDER re 43 Stipulation filed by Cal-Kirk Lanscaping Inc Case Management Conference reset for 2/23/2011 01:30 PM in Courtroom C, 15th Floor, San Francisco.. Signed by Judge Edward M.Chen on 12/14/10. (bpf, COURT STAFF) (Filed on 12/14/2010)

Board of Trustees of the Laborers Health and Welfare Trust Fund for No... v. Cal-Kirk Lanscaping Inc

Doc. 44

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BARRY E. HINKLE, Bar No. 071223 CONCEPCIÓN E. LOZANO-BATISTA, Bar No. 227227 KRISTINA M. ZINNEN, Bar No. 245346 WEINBERG, ROGER & ROSENFELD A Professional Corporation 1001 Marina Village Parkway, Suite 200 Alameda, California 94501-1091 Telephone [phone] Fax [phone] Attorneys for Plaintiffs G. DANIEL NEWLAND, Bar No. 087965 ARI HERSHER, Bar No. 260321 SEYFARTH SHAW LLP 560 Mission Street, Suite 3100 San Francisco, California 94105 Telephone [phone] Fax [phone] Attorneys for Defendant UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

THE BOARD OF TRUSTEES, in their ) capacities as Trustees of the LABORERS ) HEALTH AND WELFARE TRUST FUND ) FOR NORTHERN CALIFORNIA; LABORERS ) VACATION-HOLIDAY TRUST FUND FOR ) NORTHERN CALIFORNIA; LABORERS ) PENSION TRUST FUND FOR NORTHERN ) CALIFORNIA; and LABORERS TRAINING ) AND RETRAINING TRUST FUND FOR ) NORTHERN CALIFORNIA; NORTHERN ) CALIFORNIA DISTRICT COUNCIL OF ) LABORERS for itself and on behalf of ) LABORERS' LOCAL 139 ) ) Plaintiffs, ) ) v. ) ) CAL-KIRK LANDSCAPING, INC., A ) California Corporation, ) ) ) Defendant. ) )

No. C 08-03292 EMC

STIPULATED REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER

Date: Time: Judge: Courtroom:

December 15, 2010 1:30 p.m. Honorable Edward M. Chen C, 15th Floor

STIPULATED REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER Case No. C 08-03292 EMC Dockets.Justia.com

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Pursuant to Civil Local Rules 7-12 and 16-2, Plaintiffs and Defendant hereby request that the initial Case Management Conference scheduled for November 18, 2009 be continued for 60 days. Plaintiffs and Defendant are in the process of attempting to resolve this matter. Plaintiffs filed the original Complaint and Petition to Confirm in this action on July 9, 2008. On or around November 2008, Defendant agreed to allow Plaintiffs' auditors to audit their records to determine whether any amounts were due and owing as a result of the audit. Plaintiffs thereafter conducted an audit of Defendant's records and found a number of delinquencies owed by Defendant. On or around February 2009, Plaintiffs submitted their audit findings to Defendant to allow Defendant the opportunity to review those results and challenge any delinquencies it believed were in error. After receiving no response from Defendant, Plaintiffs filed their First Amended Complaint for Petition to Confirm Arbitration Award, Breach of Contract, Damages, and Breach of Fiduciary Duty on May 7, 2009. On or around May 15, 2009, Plaintiffs received documentation from Defendant. On or around June 3, 2009, Plaintiffs were notified that Defendant had retained legal counsel on or around May 21, 2009. On June 4, at the request of the parties, the Court granted Defendant an extension of time to answer or otherwise respond to Plaintiffs' First Amended Complaint to July 31, 2009. The parties thereafter stipulated to two additional extensions of time for Defendant to answer or otherwise respond to Plaintiffs' First Amended Complaint to August 31, 2009 and September 9, 2009, respectively. Defendant timely answered on September 9, 2009. As a result of the documentation that Defendant submitted to Plaintiffs, Plaintiffs have made adjustments to the audit worksheets. Plaintiffs and Defendant are currently engaged in a review of the revised audit worksheets and are attempting to resolve the matter without further litigation. The parties are requesting a further continuance at this time because the working attorneys for both parties have recently returned from extended medical leaves and the parties are continuing to partake in meaningful settlement discussions. A further continuance would promote judicial efficiency because the parties are very close to reaching a settlement and anticipate they will reach a settlement in the next 60 days. /// -2STIPULATED REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER Case No. C 08-03292 EMC

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Based on the above, Plaintiffs and Defendant respectfully request that the initial case management conference, currently scheduled for December 15, 2010, be continued for 60 days, in order to allow the parties time to attempt to resolve the matter without further litigation. Dated: December 6, 2010 WEINBERG, ROGER & ROSENFELD A Professional Corporation By: /s/ KRISTINA M. ZINNEN Attorney for Plaintiffs

Dated: December 6, 2010

SEYFARTH SHAW LLP By: /s/ ARI HERSHER Attorney for Defendant

[PROPOSED] ORDER CONTINUING CASE MANAGEMENT CONFERENCE Based upon the foregoing Stipulated Request to Continue Case Management Conference, the Court orders the continuance of the case management conference for 60 days, or as soon thereafter as a court date is available. In addition, the Court Orders: The CMC is reset for 2/23/11 at 1:30 p.m. A Joint CMC statement shall be filed by 2/16/11.

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The Honorable Edward M. Chen United States District Court Judge

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