Bay Area Painters & Tapers Pension Trust Fund et al v. Nunn Better Painting, Inc.

Filing 12

ORDER. Signed by Magistrate Judge Bernard Zimmerman on 9/18/2009. (bzsec, COURT STAFF) (Filed on 9/18/2009)

1 Muriel B. Kaplan, Esq. (SBN 124607) Michele R. Stafford, Esq. (SBN 172509) 2 Shaamini A. Babu, Esq. (SBN 230704) SALTZMAN & JOHNSON LAW CORPORATION 3 44 Montgomery Street, Suite 2110 San Francisco, CA 94104 4 [phone] [phone] ­ Facsimile 5 [e-mail] [e-mail] 6 [e-mail] 7 Attorneys for Plaintiff BAY AREA PAINTERS AND TAPERS 8 PENSION TRUST FUNDS, et al. 9 10 11 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: C09-0245 BZ REQUEST TO EXTEND TIME FOR SERVICE PURSUANT TO F.R.C.P. 4(m); DECLARATION OF M. KAPLAN IN SUPPORT THEREOF

BAY AREA PAINTERS AND TAPERS 12 PENSION TRUST FUND, et al., 13 14 15 v. Plaintiffs,

NUNN BETTER PAINTING, INC., a 16 California Corporation, 17 18 19 Plaintiffs respectfully request that the Court, under Federal Rules of Civil Procedure Rule Defendant.

20 4(m), issue an additional Order extending the time for service of the Complaint and Summons on 21 Defendant NUNN BETTER PAINTING, INC. for approximately sixty (60) days, as follows: 22 1. A Complaint was filed in this action on January 21, 2009, to compel an audit of

23 Defendant's records by the Plaintiffs, since Defendant was unresponsive to Plaintiffs' prior 24 requests. 25 2. Prior to service of the Complaint and Summons, however, Defendant scheduled an

26 audit for February 12 and 13, 2009, for the period of January 1, 2005 through the date of review. 27 28
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3.

This Court therefore granted an extension for service by September 21, 2009 to

2 allow time to complete the audit of Defendant's payroll records, internal reviews, billing, 3 employer review, any discussion, and payment. 4 4. The Trust Funds' auditor has reviewed the four (4) years of records submitted by

5 Defendant, and has advised me that significant amounts have been found due in under-paid 6 contributions, but that there are also overpayments. The auditors are persuing further information 7 which may result in a significant change to their findings. 8 5. Once the report is finalized, it will be sent to Defendant for two (2) weeks for

9 review and comments, and for Defendant to address any objections. If no objections are raised, 10 the auditor will forward the report to the Plaintiff's administrator for billing. Defendant will then 11 be allowed (10) days to submit payment for amounts found due on the audit. 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / /
-2REQUEST TO EXTEND TIME FOR SERVICE Case No. C09-0245 BZ
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6.

Service of Plaintiffs' Complaint remains inappropriate at this time, as Defendant

2 complied with Plaintiffs' request for audit, and has not yet reviewed the findings or been billed for 3 amounts due, since that amount may be significantly revised. In order to avoid filing another suit 4 for amounts found due on the audit, and to save the Court's time and minimize attorneys' fees and 5 costs, Plaintiffs therefore respectfully request that the Court issue an additional Order extending 6 the time for service of the Complaint and Summons for a period of sixty (60) days to allow the 7 Plaintiffs to complete the audit, and allow Defendant the opportunity to pay Plaintiffs, without the 8 need for service of process. 9 I declare under penalty of perjury that I am the attorney for the Plaintiffs in the above

10 entitled action, and that the foregoing is true to the best of my knowledge and belief. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Executed this 17th day of September, 2009 at San Francisco, California. SALTZMAN & JOHNSON LAWCORPORATION By: IT IS SO ORDERED. The time limit for service of the Complaint and Summons in this action is hereby extended December 1, to __________, 2009. _____________/s/_________________ Muriel B. Kaplan Attorneys for Plaintiffs

September 18, 2009 Dated: ____________________

_________________________________ United States Magistrate Judge