Bay Area Painters and Tapers Pension Trust Fund, and its Joint Board of Trustees et al v. MGM Drywall, Inc. et al

Filing 32

ORDER granting 31 MOTION to Continue PLAINTIFFS CASE MANAGEMENT STATEMENT and; REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE filed by Bay Area Painters and Tapers Pension Trust Fund. et al. Case Management Conference reset for 3/29/2013 08:30 AM in Courtroom 6, 17th Floor, San Francisco. Signed by Judge Charles R. Breyer on 1/4/2013. (beS, COURT STAFF) (Filed on 1/7/2013)

Case3:11-cv-04188-CRB Document31 Filed01/02/13 Page1 of 4

1 Muriel B. Kaplan, Esq. (SBN 124607)
Michele R. Stafford, Esq. (SBN 172509)
2 SALTZMAN & JOHNSON LAW CORPORATION
44 Montgomery Street, Suite 2110
3 San Francisco, CA 94104
[phone]
4 [phone] – Facsimile
[e-mail]
5 [e-mail]
6 Attorneys for Plaintiffs
7
8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 BAY AREA PAINTERS AND TAPERS
PENSION TRUST FUND, et al.
11
Plaintiffs,
12
v.
13
MGM DRYWALL, INC., a California
14 Corporation, and MIGUEL GUILLEN
RAMIREZ aka MIGUEL RAMIREZ
15 GUILLEN, an individual,

Case No.: C11-4188 CRB
PLAINTIFFS’ CASE MANAGEMENT
STATEMENT and;
REQUEST TO CONTINUE CASE
MANAGEMENT CONFERENCE;
[PROPOSED] ORDER THEREON
Date:
Time:
Ctrm:
Judge:

January 11, 2013
8:30 a.m.
8, 19th Floor, San Francisco
Honorable Charles R. Breyer

16

Defendants.

17

Plaintiffs herein respectfully submit their Case Management Statement, requesting that the

18 Case Management Conference, currently on calendar for January 11, 2013, be continued for
19 approximately 60 days.
20

1.

As the Court’s records will reflect, this action was filed on August 24, 2011.

21 Service on Defendants was effectuated on November 17, 2011, and A Proof of Service of
22 Summons on was filed with the Court on November 21, 2011. Defendants failed to plead or
23 otherwise respond to the lawsuit, and the Clerk entered default as to both Defendants on December
24 16, 2011.
25

2.

The parties have been in continuous contact to discuss resolution of this matter.

26 Plaintiffs offered Defendants a payment plan (at their request) for what was due, but ultimately
27 Defendants elected not to utilize the plan and to pay all contributions, interest, and fees and costs
28 owed. Defendant asked that liquidated damages be waived.
-1PLAINTIFFS’ CMC STATEMENT; REQUEST TO CONTINUE CMC; [PROPOSED] ORDER THEREON
Case No.: C10-3589 CRB
P:\CLIENTS\PATCL\MGM Drywall\Pleadings\C11-4188 CRB - CMC Statement 010213.doc

Case3:11-cv-04188-CRB Document31 Filed01/02/13 Page2 of 4

3.

1

Plaintiffs allowed Defendants a conditional waiver of the liquidated damages that

2 remained due, on the condition that Defendants remain current in payment of contributions
3 through May 2013 hours worked. Unfortunately, Defendants immediately became delinquent
4 again, not meeting the waiver requirement. Accordingly, liquidated damages assessed through
5 October 2011 hours worked are due and owing.
4.

6

As permitted by the Collective Bargaining and Trust Agreements, Plaintiffs

7 conducted an audit of Defendants’ payroll records for the time period December 1, 2010 through
8 the date of inspection, which took place on August 7-8, 2012. The draft report estimating the
9 amount owed as in excess of $145,000 was sent to Defendants on October 13, 2012 for their
10 review.
11

5.

Defendants contested the audit and provided documentation in support of their

12 position. Plaintiffs’ auditors reviewed said documentation and made minor adjustments to the
13 audit. On or about December 20, 2012, Plaintiffs’ counsel sent the revised audit to Defendants for
14 payment and Defendants again contested it, detailing their objections. Plaintiffs’ auditors are
15 currently reviewing said dispute to determine whether further revisions will be made. Defendants
16 shall be notified as to whether revisions will be made to the audit. If revisions are not made,
17 payment will be immediately due. If revisions are made as a result of the dispute, payment in full
18 of the revised amount shall be due within ten (10) days of the revised billing.
19

6.

Defendants additionally submitted delinquent contribution reports and payments

20 for the months of July through October 2012, and then timely submitted their contribution report
21 and payment for the month of November 2012. Defendants are now current in payment of
22 contributions as reported due, but additional liquidated damages and interest are due for August
23 through October 2012.
24

7.

On or about December 28, 2012, Plaintiffs’ counsel received a letter from an

25 attorney who represented that he had recently been retained to represent Defendants, but is hopeful
26 of resolving this matter without further litigation.
27

8.

Based on the foregoing, Plaintiffs respectfully request that the Case Management

28 Conference, currently scheduled for January 11, 2013, be continued for 60 days to allow time for
-2PLAINTIFFS’ CMC STATEMENT; REQUEST TO CONTINUE CMC; [PROPOSED] ORDER THEREON
Case No.: C10-3589 CRB
P:\CLIENTS\PATCL\MGM Drywall\Pleadings\C11-4188 CRB - CMC Statement 010213.doc

Case3:11-cv-04188-CRB Document31 Filed01/02/13 Page3 of 4

1 the information provided by Defendants to be reviewed, the audit to be finalized, and for the
2 parties to attempt to resolve these matters with newly retained counsel.
3

I declare under penalty of perjury that I am the attorney for the Plaintiffs in the above

4 entitled action, and that the foregoing is true of my own knowledge.
5

Executed this 2nd day of January, at San Francisco, California.
SALTZMAN & JOHNSON
LAW CORPORATION

6
7
By:

8
9

/S/
Muriel B. Kaplan
Attorneys for Plaintiffs

10 IT IS SO ORDERED.
11

3/29/2013
The currently set Case Management Conference is hereby continued to _________ at

12 _____, and all previously set deadlines and dates related to this case are continued accordingly.
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_________________________________________
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THE HONORABLE CHARLES R. BREYER
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13 Date: ____________________
January 4, 2013

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-3PLAINTIFFS’ CMC STATEMENT; REQUEST TO CONTINUE CMC; [PROPOSED] ORDER THEREON
Case No.: C10-3589 CRB
P:\CLIENTS\PATCL\MGM Drywall\Pleadings\C11-4188 CRB - CMC Statement 010213.doc