Operating Engineers' Pension Trust Fund et al v. Western Power & Equipment Corp. et al

Filing 118

STIPULATION AND ORDER REGARDING MEDIATION AND OTHER DEADLINES re 116 Stipulation, filed by F. G. Crosthwaite, Russell E. Burns, Operating Engineers' Pension Trust Fund. Signed by Judge Phyllis J. Hamilton on 10/11/11. (nah, COURT STAFF) (Filed on 10/11/2011)

1 RICHARD C. JOHNSON (SBN 40881)
SHAAMINI A. BABU (SBN 230704)
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 OPERATING ENGINEERS’ PENSION
TRUST FUND, et al.,
11
Plaintiffs,
12
vs.
13
WESTERN POWER & EQUIPMENT CORP,
14 et al.,
15

Defendants.

16

Case No.: C 10-04460 PJH
STIPULATION REGARDING
MEDIATION AND OTHER
DEADLINES; AND [PROPOSED]
ORDER THEREON
Complaint Filed:
10/1/10
FAC Filed:
11/12/10
SAC Filed:
3/16/11
Trial:
11/15/12
Judge: Honorable Phyllis J. Hamilton

17
18

The parties hereby stipulate as follows:

19 Overview
20

1.

This action involves withdrawal liability allegedly owed to Plaintiff Operating

21 Engineers Pension Trust Fund under ERISA as amended by the Multiemployer Pension Plan
22 Amendments Act of 1980 (29 U.S.C §§ 1001-1461 (1982).
23 Defendants Case Dealer and CNH America
24

2.

Defendants CDHC and CNH filed their Answer to the SAC on July 21, 2011.

25 Defendant APM I
26

3.

Defendant Arizona Pacific Materials I, LLC (“APM I”) appeared in this action

27 (Docket No. 39) through legal counsel which filed a motion for leave to withdraw as counsel on
28 July 5, 2011 (Docket 99). Said motion was granted on August 2, 2011 (Docket 106). Thereafter,
STIPULATION RE MEDIATION
CASE NO. C10-04460 PJH
P:\CLIENTS\OE3WL\CASES\Western Power\ADR\Stipulation Re Mediation 100611.DOC

1 default was entered against APM I on September 14, 2011 (Docket No. 114). Plaintiffs were
2 required to file a motion for default judgment against APM I within 30 days from entry of default
3 in accordance with Civil Minutes dated September 1, 2011 (Docket No. 111).

In light of this

4 Stipulation, Plaintiffs will file a motion for default judgment by December 31, 2011, so that
5 Plaintiffs have the opportunity to rely on any information and documents that Rubin, Rubin Trust,
6 and McLain may produce by December 15, 2011.
7 Defendant APM II
8

4.

Defendant Arizona Pacific Materials II, LLC (“APM II”) has been dismissed

9 without prejudice.
10 Defendant Rubin
11

5.

Defendant Robert Rubin (“Rubin”) and Rubin Family Irrevocable Trust (“Rubin

12 Trust”) filed their Answer the SAC on July 22, 2011. Plaintiffs allege that Defendants Rubin and
13 Rubin Trust are liable under Cal. Corp. Code §2011(a), 8 Del. C. 1953, §242, and Or. Rev. Stat.
14 §60.645. Defendants Rubin and Rubin Trust contend that they are entitled to a dismissal since
15 they did not receive any distributions at the time of dissolution of WPE Defendants, and that they
16 are not subject to the Court’s personal jurisdiction in this matter. Counsel for Defendants Rubin
17 and Rubin Trust has produced certain documents relevant to this action voluntarily without the
18 need for Plaintiffs to propound discovery. Said Defendants anticipate establishing that they did
19 not receive any distributions upon dissolution by December 15, 2011. If Plaintiffs determine that
20 Defendants have sufficiently established that they did not receive any distributions upon
21 dissolution Plaintiffs will dismiss Defendants Rubin and Rubin Trust. If Defendants Rubin and
22 Rubin Trust fail to establish that they did not receive distributions upon dissolution then said
23 Defendants will participate in mediation.
24 Defendant McLain
25

6.

Defendant Dean McLain (“Defendant McLain”) filed his Answer to the SAC on

26 July 22, 2011. Plaintiffs allege that Defendant McLain is liable under Cal. Corp. Code §2011(a), 8
27 Del. C. 1953, §242, and Or. Rev. Stat. §60.645. Defendant McLain contends that he is entitled to
28 a dismissal since he did not receive any distributions at the time of dissolution of WPE
STIPULATION RE MEDIATION
CASE NO. C10-04460 PJH
P:\CLIENTS\OE3WL\CASES\Western Power\ADR\Stipulation Re Mediation 100611.DOC

1 Defendants, and that he is not subject to the Court’s personal jurisdiction in this matter. Counsel
2 for Defendant McLain has produced certain documents relevant to this action voluntarily without
3 the need for Plaintiffs to propound discovery. Defendant McLain anticipates establishing that he
4 did not receive any distributions upon dissolution by December 15, 2011. If Plaintiffs determine
5 that Defendant has sufficiently established that he did not receive any distributions upon
6 dissolution Plaintiffs will dismiss Defendant McLain. If Defendant McLain fails to establish that
7 he did not receive distributions upon dissolution then he will participate in mediation.
8 WPE Defendants
7.

9

Western Power Equipment Corp., a Delaware corporation, and Western Power &

10 Equipment Corp., an Oregon corporation (collectively “WPE Defendants”) have not yet appeared
11 in this action. Plaintiffs are informed and believe that the entities are dissolved.
12 entered against WPE Defendants on September 14, 2011 (Docket No. 114).

Default was

Plaintiffs were

13 required to file a motion for default judgment against the WPE Defendants within 30 days from
14 entry of default in accordance with Civil Minutes dated September 1, 2011 (Docket No. 111). In
15 light of this Stipulation, Plaintiffs will file a motion for default judgment by December 31, 2011,
16 so that Plaintiffs have the opportunity to rely on any information and documents that Rubin, Rubin
17 Trust, and McLain may produce by December 15, 2011.
18 ADR
19

8.

Pursuant to Stipulation and Order Selecting ADR Process the parties are required to

20 complete mediation by November 15, 2011 (Docket No. 108). Charles Loughran was appointed
21 as the mediator in this action on August 30, 2011 (Docket No. 110). Counsel for the parties
22 participated in a phone conference with Mr. Loughran on September 20, 2011, and agreed to hold
23 the mediation on January 10, 2012, January 11, 2012, or January 12, 2012, for the reasons
24 specified in paragraphs 5 and 6, above.
25 Pre-Trial Deadlines
26

The parties acknowledge the pre-trial deadline specified in the Pre-Trial Order dated

27 September 6, 2011 (Docket No. 112) and do not seek to change any of those deadlines at the
28 present time.
STIPULATION RE MEDIATION
CASE NO. C10-04460 PJH
P:\CLIENTS\OE3WL\CASES\Western Power\ADR\Stipulation Re Mediation 100611.DOC

1 Magistrate Judge
2

The parties do not consent to this matter being assigned to a magistrate judge for purposes

3 other than discovery disputes.
4
5 Dated: October 6, 2011
6

By: __________/s/_________________
Shaamini A. Babu
Attorney for Plaintiffs

7
8
9 Dated: October 6, 2011
10

12
13
14
15 Dated: October 6, 2011

17
18
19

22

TRAVIS & PON
By: ___________/s/_______________
Monte Travis
Counsel for Defendants Dean McLain, Robert Rubin,
and Rubin Family Irrevocable Trust

16

21

FORD & HARRISON LLP
By: _________/s/__________________
Steven L. Brenneman
Sandra J. McMullan
Attorneys for Defendants Case Dealer Holding
Company LLC and CNH America LLC
350 S. Grand Avenue, Suite 2300
Los Angeles, CA 90071

11

20

SALTZMAN & JOHNSON
LAW CORPORATION

ORDER
Based on the foregoing Stipulation, the parties shall participate in mediation prior to
February 1, 2012. All deadlines as specified in the Pre-Trial Order dated September 6, 2011
(Docket No. 112) remain unchanged.

23

A

H

ER

LI

RT

28

R NIA

PHYLLIS J. HAMILTON
n
Hamilto
United States Districtdge Phyllis J.
Ju Judge
NO

27

ERED
O ORD
IT IS S
_______________________________________
FO

10/11/11
26 Dated: ___________________

UNIT
ED

25

ISTRIC
ES D
TC
AT
T

RT
U
O

IT IS SO ORDERED.
S

24

N

F
D IS T IC T O
R

C

STIPULATION RE MEDIATION
CASE NO. C10-04460 PJH

P:\CLIENTS\OE3WL\CASES\Western Power\ADR\Stipulation Re Mediation 100611.DOC