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

Filing 48

STIPULATION AND ORDER RESETTING CMC TO 8/5/11 re 47 Stipulation filed by Cal-Kirk Lanscaping Inc. Signed by Judge Edward M. Chen on 6/1/11. (bpf, COURT STAFF) (Filed on 6/1/2011)

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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]

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Attorneys for Plaintiffs

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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]

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Attorneys for Defendant

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THE BOARD OF TRUSTEES, in their
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capacities as Trustees of the LABORERS
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HEALTH AND WELFARE TRUST FUND
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FOR NORTHERN CALIFORNIA; LABORERS )
VACATION-HOLIDAY TRUST FUND FOR )
NORTHERN CALIFORNIA; LABORERS
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PENSION TRUST FUND FOR NORTHERN )
CALIFORNIA; and LABORERS TRAINING )
AND RETRAINING TRUST FUND FOR
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NORTHERN CALIFORNIA; NORTHERN
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CALIFORNIA DISTRICT COUNCIL OF
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LABORERS for itself and on behalf of
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LABORERS’ LOCAL 139
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Plaintiffs,
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v.
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CAL-KIRK LANDSCAPING, INC., A
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California Corporation,
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Defendant.
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No. C 08-03292 EMC

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

Date:
Time:
Judge:
Courtroom:

June 1, 2011
1:30 p.m.
Honorable Edward M. Chen
C, 15th Floor

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

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Pursuant to Civil Local Rules 7-12 and 16-2, Plaintiffs and Defendant hereby request that

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the initial Case Management Conference scheduled for February 23, 2011 be continued for 90

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days. Plaintiffs and Defendant are in the process of attempting to resolve this matter. Plaintiffs

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filed the original Complaint and Petition to Confirm in this action on July 9, 2008. On or around

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November 2008, Defendant agreed to allow Plaintiffs’ auditors to audit their records to determine

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whether any amounts were due and owing as a result of the audit. Plaintiffs thereafter conducted

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an audit of Defendant’s records and found a number of delinquencies owed by Defendant. On or

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around February 2009, Plaintiffs submitted their audit findings to Defendant to allow Defendant

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the opportunity to review those results and challenge any delinquencies it believed were in error.

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After receiving no response from Defendant, Plaintiffs filed their First Amended Complaint for

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Petition to Confirm Arbitration Award, Breach of Contract, Damages, and Breach of Fiduciary

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Duty on May 7, 2009. On or around May 15, 2009, Plaintiffs received documentation from

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Defendant. On or around June 3, 2009, Plaintiffs were notified that Defendant had retained legal

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counsel on or around May 21, 2009. On June 4, at the request of the parties, the Court granted

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Defendant an extension of time to answer or otherwise respond to Plaintiffs’ First Amended

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Complaint to July 31, 2009. The parties thereafter stipulated to two additional extensions of time

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for Defendant to answer or otherwise respond to Plaintiffs’ First Amended Complaint to August

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31, 2009 and September 9, 2009, respectively. Defendant timely answered on September 9, 2009.

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As a result of the documentation that Defendant submitted to Plaintiffs, Plaintiffs have

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made adjustments to the audit worksheets. The parties then engaged in informal discovery,

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including the exchange of payroll records and related documents. Defendant then provided

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Plaintiffs with an analysis of Plaintiffs’ Trust Fund audit, as well as an analysis of the wage issues

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brought by the Unions. Plaintiffs and Defendant are currently engaged in a review of the revised

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audit worksheets and Defendant’s analyses, and are attempting to resolve the matter without

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further litigation.

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The parties have exchanged settlement figures on multiple occasions and believe that there

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is a bridgeable gap between their respective settlement positions. The parties are now requesting a

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-2STIPULATED REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER
Case No. C 08-03292 EMC

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further continuance of the Case Management Conference because a continuance would promote

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judicial efficiency and allow the parties to allocate their time and resources towards settlement.

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The parties believe that they are close to reaching a settlement and anticipate they will reach an

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agreement within the next 120 days.

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Based on the above, Plaintiffs and Defendant respectfully request that the initial case

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management conference, currently scheduled for June 1, 2011, be continued for 120 days, in order

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to allow the parties time to attempt to resolve the matter without further litigation.

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Dated: May 24, 2011
WEINBERG, ROGER & ROSENFELD
A Professional Corporation

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By:

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/s/
KRISTINA M. ZINNEN
Attorney for Plaintiffs

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Dated: May 24, 2011
SEYFARTH SHAW LLP

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By:

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/s/
ARI HERSHER
Attorney for Defendant

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[PROPOSED] ORDER CONTINUING CASE MANAGEMENT CONFERENCE
Based upon the foregoing Stipulated Request to Continue Case Management Conference,

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the Court orders the continuance of the case management conference for 120 days, or as soon

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thereafter as a court date is available. In addition, the Court Orders:

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The Case Management Conference is reset from 6/1/11 to 8/5/11 at 9:00 a.m. in Courtroom 5,
17th Floor. No further continuance will be granted.

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Dated:

6/1/11

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The Honorable Edward M. Chen

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Judge E

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Chen

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D
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United States District Court Judge

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