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

Filing 46

STIPULATION AND ORDER Modifying Dates in Scheduling Order. Signed by Judge Samuel Conti on 10/16/09. (tdm, COURT STAFF) (Filed on 10/16/2009)

DOWNEY BRAND LLP CASSANDRA M. FERRANNINI (Bar No. 204277) BRIAN J. LIM (Bar No. 258262) 621 Capitol Mall, 18th Floor Sacramento, CA 958 14 Telephone: [phone] Facsimile: (9 1 6) 444-2 100 [e-mail] [e-mail] Attorneys for Defendants CLARK'S WELDING AND MACHINE, SYLVESTER HABERMAN, and FRANZ EDELMAYER, erroneously sued herein as Franz Edel Mayer UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

OPERATING ENGINEERS' PENSION TRUST FUND; GIL GROSTHWAITE AND RUSS BURNS, as Trustees, Plaintiffs,

Case No. 3:09-cv-00044-SC JOINT STIPULATION REGARDING GOOD CAUSE TO MODIFY DATES IN SCHEDULING ORDER AND ORDER THEREON

CLARK'S WELDING AND MACHINE, a California partnership, aka CLARK'S WELDING, aka CLARK'S WELDING AND MACHINING; SYLVESTER HABERMAN, individually, and FRANZ EDEL MAYER, individually, Defendants.

Plaintiffs Operating Engineers' Pension Trust Fund, Gil Grosthwaite, and Russ Burns (hereinafter "Plaintiffs") and Defendants Clark's Welding and Machine, Sylvester Habennan, and Franz EdeImayer, eironeously sued herein as Franz Edel Mayer (hereinafter "Defendants") hereby jointly stipulate and seek leave pursuant to Rule 16(b) of the Federal Rules of Civil Procedure and this Court's Status Conference Order to extend the court's deadlines to hear motions and discovery cut-off date filed by the Court on May 29,2009 ("Scheduling Order"), with respect to third-party witness Tracy Mainguy, Esq. only. The stipulation and requested
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JOINT STIPULATION RE: GOOD CAUSE TO MODIFY DATES IN ORDER: [PROPOSED] ORDER

exteilsion by the parties would not alter or otherwise affect any other dates. Good cause exists for the request as follows: The focus of this litigation is Plaintiffs' claim that Defendants are liable for withdrawal liability under the Employee Retirement Income Security Act of 1974 ("ERISA"). Defendants asserted several affirmative defenses in their Answer to Plaintiffs' Complaint. Several defenses require evidence regarding the proper interpretation of the parties' Februaiy 2004 "Stipulation for Dismissal as to Defendants Clark's Welding and Machine and Franz Edel Meyer [sic]," ("Stipulated Settlement"), which was negotiated during the parties' initial 2003 lawsuit, Walters,
et al. v. Clark S Welding and Machine, et al., (N.D. Cal. 2003, No. C 03-2544 JSW).

Third-party witness Tracy Mainguy, Esq. represented Plaintiffs' in the 2003 lawsuit, negotiated its settlement, and drafted the Stipulated Settlement at issue in this case. Thus, Defendants' contend that Ms. Mainguy is a vital witness to the present action, and a full and complete deposition of Ms. Mainguy is critical to the just resolution of this case. On September 2,2009, Defendants subpoeilaed Ms Mainguy for her deposition on Septeinber 18, 2009 at Defendants' counsel's Sacramento office. Ms. Mainguy informed Defendants' counsel that she had four young children to care for and requested accommodations. To accomn~odate Mainguy's requests, Defendants' re-noticed Ms. Mainguy's deposition for Ms. Saturday, September 19, 2009, at Plaintiffs' counsel's San Francisco office. Defendants', through their counsel, contend as follows: 1. When Ms. Mainguy arrived at her deposition, she informed the parties' counsel,

for the first time, that she was pregnant. 2. A few minutes into the deposition, Ms. Mainguy began to complain of shortness of

breath and dizziness. 3. Defendants' counsel offered to re-notice her deposition for a more convenient date

and location - even going so far as to suggest they hold the deposition at Ms. Mainguy's home
- but Ms. Mainguy refused to provide alternative dates.

4.

In order to further accommodate Ms. Mainguy, Defendants' counsel permitted her

to take as many breaks as she needed during the deposition. 10334402 2
JOINT STIPULATION RE: GOOD CAUSE TO MODIFY DATES IN ORDER: [PROPOSED] ORDER

5.

Despite these numerous atteinpts to accoinmodate her, Ms. Mainguy began to yell

at Defendants' counsel and accused her of harassing her.
6.

Ms. Maillguy then abruptly left the deposition be