Operating Engineers' Pension Trust Fund et al v. Clarks Welding And Machine et al

Filing 105

ORDER requiring supplemental briefing (sclc2, COURT STAFF) (Filed on 12/11/2009)

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For the Northern District of California

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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OPERATING ENGINEERS' PENSION TRUST ) FUND; GIL CROSTHWAITE AND RUSS ) BURNS, as Trustees, ) ) ) Plaintiffs, ) ) v. ) ) CLARK'S WELDING AND MACHINE, a California partnership, aka ) CLARK'S WELDING, aka CLARK'S ) WELDING AND MACHINING; SYLVESTER ) HABERMAN, individually, and FRANZ ) ) EDELMAYER, individually, ) ) Defendants. ) )

Case No. 09-0044 SC ORDER REQUIRING SUPPLEMENTAL BRIEFING

This matter comes before the Court on the Motion for Summary Judgment ("Motion") filed by Plaintiffs Operating Engineers' Pension Trust Fund ("Operating Engineers"), Gil Crosthwaite ("Crosthwaite"), and Russ Burns ("Burns"), as Trustees (collectively "Plaintiffs"). Docket No. 50. Defendants Clark's

Welding and Machine ("Clark's Welding"), Sylvester Haberman ("Haberman"), and Franz Edelmayer ("Edelmayer") (collectively "Defendants") filed an Opposition, and Plaintiffs filed a Reply. Docket Nos. 77, 78. For the reasons stated herein, the Court

requires supplemental briefing. This action is not the first time Plaintiffs sued Defendants. On May 23, 2003, a number of pension trust funds, including

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For the Northern District of California

Operating Engineers, brought an action against Defendants "seeking to enforce Defendant's [sic] obligation to contribute fringe benefits to the Trust Funds under the collective bargaining agreement." Thurn Decl.1 Ex. A ("2003 Compl.") at 2. About nine

months later, in February 2004, the pension funds, Clark's Welding and Edelmayer filed a Stipulation for Dismissal. Ex. G ("2004 Stipulation"). Plaintiffs are now suing Defendants seeking payment of withdrawal liability in the sum of $330,921. 1, ¶ 1. Compl., Docket No. See Thurn Decl.

One of Defendants' affirmative defenses is that the 2004

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Stipulation released Defendants from the obligation to pay withdrawal liability. 10-15. See Docket No. 30 ("Answer") at 5; Opp'n at

Tracy Mainguy ("Mainguy") represented Plaintiffs in the Opp'n at 2-3. On

2003 lawsuit, and drafted the 2004 Stipulation.

September 19, 2009, Mainguy left her deposition before she could be asked questions regarding the 2004 Stipulation. Id. at 4;

Ferrannini Decl.2 ¶¶ 4-7, Ex. B ("Mainguy Dep.") at 75:20-79:4. The parties agreed to continue her deposition on November 18, 2009. Ferranini Decl. ¶ 7. Under the Federal Rules, if a party opposing a motion for summary judgment shows by affidavit that it cannot present facts essential to justify its opposition, the court may: (1) deny the

Richard Thurn, an attorney and co-owner of Gray & Thurn, Inc., filed a declaration in support of Defendants' Opposition. Docket No. 77-6. Cassandra M. Ferrannini, a partner at Downey Brand LLP, filed a declaration in support of Defendants' Opposition. Docket No. 77-1. 2
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motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. 56(f). Fed. R. Civ. P.

Pursuant to this rule, the Court requires the parties to

submit supplemental briefs addressing the impact, if any, of Ms. Mainguy's continued deposition testimony on the issues raised in Plaintiffs' Motion for Summary Judgment. If the parties did not,

in fact, continue her deposition on that date, then the parties should schedule her continued deposition as soon as practicable in order to comply with the supplemental briefing schedule contained in this Order.3 Defendants' supplemental brief is not to exceed five (5) pages and must be filed on or before Friday, January 15, 2010. Plaintiffs' response is not to exceed three (3) pages and must be filed on or before Wednesday, January 20, 2010. The brief and

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reply should focus on the impact of Ms. Mainguy's continued deposition testimony on the issues raised in Plaintiffs' Motion for Summary Judgment. There will be no further briefing regarding

any other issue raised by the Motion for Summary Judgment, and the Motion for Summary Judgment will be decided on the papers after the Court has reviewed the supplemental briefs. /// /// /// /// The Court extended the discovery cut-off regarding Mainguy to January 5, 2010. Docket No. 46 ("Stipulation and Order") at 4. 3
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For the Northern District of California

The Court VACATES the pretrial conference date and the trial date in this case. The parties shall appear for trial setting on

February 19, 2010, at 10:00 a.m. in Courtroom 1, on the 17th Floor, U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102.

IT IS SO ORDERED.

Dated: December 11, 2009 UNITED STATES DISTRICT JUDGE

United States District Court

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