Pension Trust Fund for Operating Engineers et al v. Tractor Equipment Sales et al

Filing 25

ORDER GRANTING 24 Third MOTION to Continue CASE MANAGEMENT CONFERENCE AND ALL RELATED DEADLINES. Case Management Statement due by 2/15/2013. Initial Case Management Conference set for 2/22/2013 01:30 PM in Courtroom 11, 19th Floor, San Francisco.. Signed by Judge Jeffrey S. White on 11/8/12. (jjoS, COURT STAFF) (Filed on 11/8/2012)

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1 RICHARD C. JOHNSON (SBN 40881)
SHAAMINI A. BABU (SBN 230704)
2 JULIE A. OSTIL (SBN 215202)
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 Plaintiffs
8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 PENSION TRUST FUND FOR OPERATING
ENGINEERS; F.G. CROSTHWAITE and
11 RUSSELL E. BURNS, as Trustees,

REQUEST TO CONTINUE CASE
MANAGEMENT CONFERENCE AND
ALL RELATED DEADLINES;
[PROPOSED] ORDER THEREON

Plaintiffs,

12

Case No.: C 12-01056 JSW

13 vs.
14 TRACTOR EQUIPMENT SALES, INC., a
California corporation, J.L. WHITE
15 INTERNATIONAL, INC., a California
corporation, TES ASSET MANAGEMENT
16 AND CONSULTING GROUP, a California
joint venture, and DOES 1-20
17
Defendants.
18

Date: December 7, 2012
Time: 1:30 p.m.
Courtroom 11, 19th Floor
Judge: The Honorable Jeffrey S. White

19
20

Plaintiffs herein respectfully request that the Case Management Conference currently on

21 calendar for December 7, 2012, 1:30 p.m., and all related deadlines, including ADR deadlines, be
22 continued for 90 days, to allow Plaintiffs’ counsel to conduct a Federal Rules of Bankruptcy
23 Procedure §2004 Exam of principal Steven Van Tuyl ordered to take place on December 3, 2012.
24 One of the purposes of the 2004 exam is to determine whether Plaintiffs will file a Motion for
25 Default as to defendant TES Asset Management and Consulting Group, a California joint venture
26 (the nature of the joint venture and its relationship to the debtor is currently unknown) and to
27 evaluate whether or not plaintiffs will be amending the complaint to name new defendants whose
28
-1REQUEST TO CONTINUE CMC; [PROPOSED] ORDER THEREON
Case No.: C 12-01056 JSW
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1 individual liability will be explored during the 2004 exam.
2

1.

Good Cause exists for the request:

This action arises under the Employee

3 Retirement Income Security Act of 1974 (“ERISA”), as amended by the Multiemployer Pension
4 Plan Amendments Act of 1980 (29 U.S.C §§1001-1461 (1982)), to recover withdrawal liability
5 amounts owed by Tractor Equipment Sales, Inc. and its controlled group members to plaintiffs
6 Pension Trust Fund for Operating Engineers, F.G. Crosthwaite, and Russell E. Burns
7 (“Plaintiffs”).
8

2.

On March 1, 2012, plaintiffs filed a Complaint in this matter.

9

3.

Service was effectuated on defendants Tractor Equipment Sales, Inc., a California

10 corporation, J.L. White International, Inc., a California corporation, and TES Asset Management
11 and Consulting Group, a California joint venture, by personal service on Jim White, authorized
12 agent and/or officer for each defendant on April 9, 2012. A proof of service was filed on April 19,
13 2012. (Dkt. # 10)
14

4.

Defendant Tractor Equipment Sales, a California corporation, filed a Chapter 7

15 Bankruptcy in the U.S. Bankruptcy Court, Northern District of California, on May 14, 2012. On
16 June 7, 2012, plaintiffs filed a Notice of Automatic Stay Under 11 U.S.C. Section 362 as to
17 defendant Tractor Equipment Sales, Inc. only. (Dkt. #15) Further, plaintiffs’ counsel made an
18 appearance at the Meeting of Creditors wherein plaintiffs’ counsel conferred with counsel for
19 defendant Tractor Equipment Sales, a California corporation and the Bankruptcy Trustee.
20 Plaintiffs’ counsel will be conducting a Federal Rules of Bankruptcy Procedure §2004 Exam of
21 principal Steven Van Tuyl on December 3, 2012 to determine whether or not plaintiffs will be
22 adding defendants to this instant action and to determine whether plaintiffs may proceed by default
23 against defendant TES Asset Management and Consulting Group.
24

5.

On May 29, 2012, plaintiffs requested that the Case Management Conference

25 scheduled on June 22, 2012, and all of its associated deadlines, be continued for 60 days in
26 anticipation of plaintiffs filing a Request for Entry of Default against Defendant and/or amending
27 the complaint to add new defendants. (Dkt. 12)
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-2REQUEST TO CONTINUE CMC; [PROPOSED] ORDER THEREON
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6.

1

On May 30, 2012, the Motion to Continue Case Management was granted by the

2 Court and the Case Management Conference was continued to August 24, 2012 at 1:30 pm. (Dkt.
3 #13)
4

7.

On June 19, 2012, plaintiffs filed a Notice of Voluntary Dismissal of Defendant

5 J.L. White International, Inc. only. (Dkt. 16)
6

8.

On July 25, 2012, plaintiffs filed a Request for Default of TES Asset Management

7 and Consulting Group, a California joint venture, only. (Dkt. # 17)
8

9.

On July 30, 2012, plaintiffs requested that the Case Management Conference

9 scheduled on August 24, 2012, and all of its associated deadlines, be continued for 90 days in
10 anticipation of plaintiffs filing a Motion for Default as to defendant TES Asset Management and
11 Consulting Group, a California joint venture. (Dkt. # 18)
12

10.

On August 1, 2012, the Motion to Continue Case Management was granted by the

13 Court and the Case Management Conference was continued to December 7, 2012 at 1:30 pm.
14 (Dkt. #22).
15

11.

Debtors (Defendants to this action) have stalled in providing documents that would

16 enable Plaintiffs (Creditors in the bankruptcy action) to evaluate whether it may proceed against
17 TES Asset Management and Consulting Group and to determine whether there may be additional
18 defendants with liability in this matter.
19

12.

Plaintiffs have now sought and received an Order from the bankruptcy court

20 granting document production and a 2004 exam to be held on December 3, 2012 (the earliest
21 available date for debtor’s bankruptcy counsel).
22

13.

Since no defendants have appeared in the action, there is no need to hold a Case

23 Management Conference or elect an ADR procedure.
24

14.

Therefore, plaintiffs respectfully request that the Case Management Conference

25 currently scheduled for December 7, 2012, and all of its associated deadlines, be continued for 90
26 days in anticipation of Plaintiffs conducting discovery in the bankruptcy proceeding and thereafter
27 analyzing the information received in order to determine whether it may proceed with a Motion
28
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1 for Default Judgment as to TES Asset Management and Consulting Group and whether it has
2 grounds for amending its complaint to add additional defendants.
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 7th day of November, 2012, at San Francisco, California.
SALTZMAN & JOHNSON LAW CORPORATION

6
7

By: ____________/S/____ _______________
Julie A. Ostil
Attorneys for Plaintiffs

8
9
10

ORDER

11
12 IT IS SO ORDERED.
13

Based on the foregoing, and GOOD CAUSE APPEARING, the currently set Case

14 Management Conference is hereby continued to Febraury 22, 2013

at 1:30 p.m. All related

15 deadlines, including ADR deadlines, are extended accordingly.
16
November 8, 2012
17 Date: ____________________
18

_________________________________________________
THE HONORABLE JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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-4REQUEST TO CONTINUE CMC; [PROPOSED] ORDER THEREON
Case No.: C 12-01056 JSW
P:\CLIENTS\OE3WL\CASES\TES Tractor Equipment Sales\Pleadings\CMC\Request to Continue CMC 110512.DOC