Joltid Limited v. Skype Technologies S.A. et al

Filing 12

STIPULATION re 1 Complaint, TO EXTEND TIME FOR DEFENDANTS EBAY INC. AND SKYPE INC. TO INITIALLY ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT by Joltid Limited. (Malmberg, Mieke) (Filed on 10/19/2009)

Joltid Limited v. Skype Technologies S.A. et al

Doc. 12

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ERSKINE & TULLEY A PROFESSIONAL CORPORATION MICHAEL J. CARROLL (St. Bar #50246) 220 Sansome Street, Suite 600 San Francisco, CA 94104 Telephone: [phone] Attorneys for Plaintiffs

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) Plaintiffs, ) ) vs. ) ) ACE ROOFING COMPANY, etc., ) ) Defendant. ) ____________________________________) TO DEFENDANT: PLEASE TAKE NOTICE that on Tuesday, May 10, 2005 at 9:30 a.m., or as soon thereafter as counsel may be heard, before the Honorable Martin J. Jenkins, Judge of the United States District Court, Northern District of California, 450 Golden Gate Avenue, Courtroom 11, 19th Floor, San Francisco, California, plaintiffs, BOARD OF TRUSTEES OF THE BAY AREA ROOFERS HEALTH & WELFARE TRUST FUND, PACIFIC COAST ROOFERS PENSION PLAN, EAST BAY/NORTH BAY ROOFERS BOARD OF TRUSTEES OF THE BAY AREA ROOFERS, et al., NO. C 04 3098 MJJ NOTICE OF MOTION AND MOTION FOR DEFAULT JUDGMENT AND ATTORNEYS FEES; POINTS AND AUTHORITIES IN SUPPORT THEREOF [F.R.C.P. 55 (B)(2)] Date: May 10, 2005 Time: 9:30 a.m. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

VACATION TRUST FUND, BAY AREA COUNTIES ROOFING INDUSTRY PROMOTION FUND, BAY AREA COUNTIES ROOFING INDUSTRY APPRENTICESHIP TRAINING FUND; BRUCE LAU, TRUSTEE, will and does move this Court, pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure, to enter a default

NOTICE OF MOTION AND MOTION FOR DEFAULT JUDGMENT AND ATTYS FEES; POINTS & AUTH.IN SUPPORT THEREOF

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contributions, liquidated damages, interest, attorneys fees and court costs. This motion is made on the grounds that defendant has failed to appear herein after valid service, the default of defendant was entered by this Court on September 30, 2004, and there are no triable issues of fact or disputes at law. Defendant has a contractual

obligation to pay contributions to the BAY AREA ROOFERS HEALTH & WELFARE TRUST FUND, PACIFIC COAST ROOFERS PENSION PLAN, EAST BAY/NORTH BAY ROOFERS VACATION TRUST FUND, BAY AREA COUNTIES ROOFING INDUSTRY PROMOTION FUND, BAY AREA COUNTIES ROOFING INDUSTRY APPRENTICESHIP TRAINING FUND and has failed to properly pay on behalf of covered employees in a timely manner. This motion is based upon this Notice,

the Memorandum of Points and Authorities in Support of Motion for Default Judgment, the Declarations of Sandy Stephenson and Michael J. Carroll in Support of Motion for Default Judgment filed herewith, and such further oral or documentary evidence as may be presented at the hearing of this motion. DATED: April 5, 2005 ERSKINE & TULLEY

By:

/s/ Michael J. Carroll Michael J. Carroll Attorneys for Plaintiffs

MEMORANDUM OF POINTS AND AUTHORITIES 25 26 27 28 In this ERISA I. INTRODUCTION collection action plaintiffs, BOARD OF

TRUSTEES OF THE BAY AREA ROOFERS HEALTH & WELFARE TRUST FUND, PACIFIC

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COAST ROOFERS PENSION PLAN, EAST BAY/NORTH BAY ROOFERS VACATION TRUST FUND, BAY AREA COUNTIES ROOFING INDUSTRY PROMOTION FUND, BAY AREA COUNTIES ROOFING INDUSTRY APPRENTICESHIP TRAINING FUND; BRUCE LAU, TRUSTEE, seek to recover employee benefit contributions, liquidated damages and interest for the months of January through December 2004. The total amount due is $111,604.96. Defendant, ACE ROOFING COMPANY,

a California corporation, is an employer which is currently delinquent in its fringe benefit contribution obligations. Under the terms of the Trust Agreements a contribution is due on the 10th day of the month immediately following the month for which the contribution is required, Exhibit 3, Article III, Paragraph B, and is delinquent if not received by the 15th day of the month in which the Due Date falls, Article III, Paragraph C. The complete list of delinquent months and amounts is set forth in Exhibit 4 to the Stephenson Declaration. Obviously the amount may change by the date of the hearing if defendant either makes further payments or falls further behind. Plaintiffs will update this information by a supplemental declaration if a change in the amount due occurs. The amounts due have been computed based on the monthly

reporting forms filled out by defendant and submitted to the Trust Funds without payment. Under the terms of the Trust Agreement of the Bay Area Roofers Health and Welfare Trust Fund to which defendant is

specifically bound by its contract, failure to make timely payment results in the following consequences: A. Liquidated damages 1) 2% of the delinquent contributions if received between the 15th of the month in which the Due Date falls and the 1st of the following month; 2) 6% of the delinquent contributions if
NOTICE OF MOTION AND MOTION FOR DEFAULT JUDGMENT AND ATTYS FEES; POINTS & AUTH.IN SUPPORT THEREOF 3

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received after the 1st of the month following the Due Date but before the 10th of the month following the Due Date; 3) 10% of the delinquent contributions if received after the 10th of the month following the Due Date; 4) 20% of the delinquent contributions if received after the delinquent contributions are referred to an attorney for collection, with a minimum of $100; Exhibit 3, Amendment Number Two,(2)(a)(i)(ii) (iii)(iv) B. Interest at the rates prescribed from time to time pursuant to the Underpayment Rate of Internal Revenue Code Section 6621..., Exhibit 3, Article III, Para. C(3), page 8 C. Attorneys fees, Exhibit 3, Article III, Para. E., pages 11-12 The other trust agreements contain the same language. II. FACTUAL BACKGROUND Defendant has entered into a collective bargaining

agreement with Roofers Local Union No. 40, which requires that contributions be paid on behalf of covered employees to the BAY AREA ROOFERS HEALTH & WELFARE TRUST FUND, PACIFIC COAST ROOFERS PENSION PLAN, EAST BAY/NORTH BAY ROOFERS VACATION TRUST FUND, BAY AREA COUNTIES ROOFING INDUSTRY PROMOTION FUND, BAY AREA COUNTIES ROOFING INDUSTRY APPRENTICESHIP TRAINING FUND. See Exhibit 1 to

the Stephenson Declaration, the Individual Employer Agreement which binds defendant to the Working Agreement, Exhibit 2 to the

Stephenson Declaration, which at Articles XVIII, XIX, XX, XXI and XXII bind defendant to each of the Agreements and Declarations of Trust of each trust fund of plaintiff. See Exhibit 3 to the

Stephenson Declaration, the Trust Agreement of the Bay Area Roofers Health and Welfare Trust Fund. ////

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III. SEPARATE STATEMENT OF UNDISPUTED FACTS Every essential allegation of the complaint is proved by the affidavits submitted herewith: COMPLAINT PARAGRAPH 1 COMPLAINT ALLEGATIONS Jurisdiction PROOF OF ALLEGATION Carroll Decl.; 29 U.S.C. Sec. 1132, 1145; 29 U.S.C. Sec. 185 (a) Carroll Decl. et seq. Carroll Decl. Stephenson Decl.

Status of Plaintiff Jurisdiction over defendant Defendant bound by contract to pay contributions

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Defendant has failed to Stephenson pay contributions in a timely Decl. manner Demand has been made upon defendant Contract documents provide for attorneys' fees Carroll Decl. Exhibit 3

IV. ARGUMENT A. PLAINTIFFS ARE ENTITLED TO RECOVER LIQUIDATED DAMAGES, INTEREST AND ATTORNEYS FEES AS A MATTER OF LAW An award of liquidated damages, interest and attorneys' fees is mandatory under 29 U.S.C. § 1132(g). Liquidated damages are calculated at 20% of the

contribution amount due pursuant to the Trust Agreement, Exhibit 3. Interest is allowed and has been computed based on the rates charged by the Internal Revenue Service pursuant to Section 6621 of the Code. The Stephenson Declaration sets forth the bases

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for calculating interest and liquidated damages through May 10, 2005 and a detail sheet summarizing the amounts due is attached as Exhibit 4 to her declaration and is incorporated herein. The trust agreement, Exhibit 3, Article III, Section E, page 11, provides for attorneys fees and court costs. The Carroll

Declaration details the fees and costs incurred in this action. CONCLUSION It is respectfully submitted that plaintiffs are entitled to default judgment according to proof. Dated: April 5, 2005 ERSKINE & TULLEY By: /s/ Michael J. Carroll Michael J. Carroll Attorneys for Plaintiffs

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PROOF OF SERVICE BY MAIL I am a citizen of the United States and employed in the City and County of San Francisco, California. I am over the age of eighteen

years and not a party to the within above entitled action; my business address is 220 Sansome Street, Suite 600, San Francisco, California 94104. On April 5, 2005 I served the within NOTICE OF

MOTION AND MOTION FOR DEFAULT JUDGMENT AND ATTORNEYS' FEES; POINTS AND AUTHORITIES IN SUPPORT THEREOF, AND DECLARATIONS OF SANDY STEPHENSON AND MICHAEL J. CARROLL IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT; PROPOSED ORDER AND DEFAULT JUDGMENT on the defendant in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States post office mail box at San Francisco, California, addressed as follows: Mr. Manuel Martinez Ace Roofing Company P. O. Box 5206 San Mateo, CA 94402 I, DIANE ANDRADE, certify (or declare), under penalty of perjury that the foregoing is true and correct. Executed on April 5, 2005 at San Francisco, California.

/s/ Diane Andrade