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

Filing 63

STIPULATION AND ORDER REGARDING CASE MANAGEMENT CONFERENCE AND RELATED DEADLINES re 60 MOTION to Continue STIPULATION REGARDING CASE MANAGEMENT CONFERENCE AND RELATED DEADLINES; AND [PROPOSED] ORDER MOTION to Continue STIPULATION REGARDIN G CASE MANAGEMENT CONFERENCE AND RELATED DEADLINES; AND [PROPOSED] ORDER filed by F. G. Crosthwaite, Russell E. Burns, Operating Engineers' Pension Trust Fund. Signed by Judge Phyllis J. Hamilton on 3/24/11. (nah, COURT STAFF) (Filed on 3/24/2011)

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 9 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case No.: C 10-04460 PJH STIPULATION REGARDING CASE MANAGEMENT CONFERENCE AND RELATED DEADLINES; AND [PROPOSED] ORDER Complaint Filed: 10/1/11 FAC Filed: 11/12/11 SAC Filed: 3/16/11 Judge: Honorable Phyllis J. Hamilton

10 OPERATING ENGINEERS' PENSION TRUST FUND, et al., 11 Plaintiffs, 12 vs. 13 WESTERN POWER & EQUIPMENT CORP, 14 et al., , 15 16 17 18 Defendants.

Pursuant to Fed. R. Civ. P. Rule 6(b) and Civ. L.R. 6.1, the parties hereby stipulate as

19 follows: 20 Overview 21 1. This action involves withdrawal liability owed to Plaintiff Operating Engineers

22 Pension Trust Fund under ERISA as amended by the Multiemployer Pension Plan Amendments 23 Act of 1980 (29 U.S.C §§ 1001-1461 (1982). The Second Amended Complaint ("SAC") was filed 24 on March 16, 2011 ("Docket 53") pursuant to this Court's Minute Order dated February 16, 2011 25 (Docket No. 45). Given the recent filing of the SAC, the complex issues involved in this action, 26 and the claims pending against numerous Defendants, the parties hereby stipulate to extend the 27 deadlines pending in this action as specified herein. 28
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1 Defendants Case Dealer and CNH America 2 2. Defendants Case Dealer Holding Company, LLC ("Case Dealer") and CNH

3 America, LLC ("CNH America") have appeared in this action (Docket No. 10) and are 4 represented by legal counsel that is registered with the Court's Electronic Case Filing system. 5 Accordingly, Defendants Case Dealer and CNH America have been electronically served with the 6 SAC. As such, Defendants Case Dealer and CNH America's answer or responsive pleading to the 7 Second Amended Complaint is due on April 6, 2011. 8 Defendant APM I 9 3. Defendant Arizona Pacific Materials I, LLC ("APM I") appeared in this action

10 (Docket No. 39) through its legal counsel that is registered with the Court's Electronic Case Filing 11 system. Accordingly, Defendant APM I has been electronically served with the SAC. As such, 12 Defendant APM I's answer or responsive pleading to the Second Amended Complaint is due on 13 April 6, 2011. However, legal counsel that had previously appeared for APM I filed a Notice of 14 Withdrawal of Counsel on March 18, 2011 (Docket 58), and has advised Plaintiffs' counsel that 15 Defendant AMP I is a dissolved entity. The same firm still represents APM II, see below. 16 Defendant APM II 17 4. Defendant Arizona Pacific Materials II, LLC ("APM II") has appeared in this

18 action (Docket No. 39) and is represented by legal counsel that is registered with the Court's 19 Electronic Case Filing system. Accordingly, Defendant APM II has been electronically served 20 with the SAC. As such, Defendant APM II's answer or responsive pleading to the Second 21 Amended Complaint is due on April 6, 2011. Plaintiffs hereby grant an extension until May 6, 22 2011, for Defendant APM II to file an answer or responsive pleading to the SAC. The extension 23 is necessary so that Plaintiffs and Defendant APM II can attempt to resolve their respective claims 24 and defenses without the Court's involvement. 25 Defendant Rubin 26 5. Service on Defendant Robert Rubin ("Rubin") and Rubin Family Irrevocable Trust

27 ("Rubin Trust") was effectuated on January 29, 2011 (Docket Nos. 48-49). Defendants Rubin and 28
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1 Rubin Trust are represented by legal counsel. Plaintiffs hereby agree to an extension until May 6, 2 2011, for Defendants Rubin and Rubin Trust to file an answer or responsive pleading to the SAC. 3 The extension is necessary so that Plaintiffs and Defendants Rubin and Rubin Trust can attempt to 4 resolve their respective claims and defenses without the Court's involvement. Defendants Rubin 5 and Rubin Trust contend that the Court lacks personal jurisdiction over them, and if they must file 6 a responsive pleading they intend to move for dismissal on that basis. 7 Defendant McLain 8 6. Defendant Dean McLain ("Defendant McLain") is represented by legal counsel

9 who is authorized to accept service on behalf of Defendant McLain. Plaintiffs hereby agree to an 10 extension until May 6, 2011, for Defendant McLain to file an answer or responsive pleading to the 11 SAC. The extension is necessary so that Plaintiffs and Defendant McLain can attempt to resolve 12 their respective claims and defenses without the Court's involvement. Defendant McLain

13 contends that the Court lacks personal jurisdiction over him, and if he must file a responsive 14 pleading he intends to move for dismissal on that basis. 15 WPE Defendants 16 7. Western Power Equipment Corp., a Delaware corporation, and Western Power &

17 Equipment Corp., an Oregon corporation (collectively "WPE Defendants") have not yet appeared 18 in this action. Plaintiffs are informed and believe that the entities are dissolved. Plaintiffs allege 19 that service of WPE Defendants was effectuated through service on its shareholder Defendant 20 Rubin on January 29, 2011, pursuant to Cal. Corp. Code §2011(b). At this time, Plaintiffs' 21 counsel has not been contacted by anyone on behalf of WPE Defendants. Plaintiffs are in the 22 process of ascertaining if WPE Defendants intend to appear in this action. Plaintiffs intend to 23 conduct discovery regarding several issues, including but not limited to, WPE Defendants' sale of 24 assets, the letter agreement between WPE Defendants and Defendant Case Dealer, members of 25 WPE Defendants' control group, WPE Defendants' corporate status, as well as their assets at all 26 relevant time periods and will move for a default judgment against WPE Defendants, if necessary. 27 28
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1 Other Deadlines 2 8. Since the SAC was filed on March 16, 2011, the parties did not have sufficient time

3 to meet and confer and attempt to stipulate to an ADR process by March 21, 2011, or file a Rule 4 26(f) report and complete initial disclosures by March 31, 2011. The parties require sufficient 5 opportunity to complete said tasks in preparation for a productive Case Management Conference. 6 In the interest of minimizing costs as well as the Court's time and resources, the parties 7 respectfully request that the deadlines currently pending in this action be continued as follows: 8 9 10 11 12 13 14 15 16 17 18 19 (Dkt #34) 20 21 9. The parties believe that an extension of the deadlines as specified herein promotes 4/7/11 6/2/11 6/6/11 3/31/11 (Dkt #3) 5/26/11 5/30/11 Prior Date 3/21/11 (Dkt # 3) New Date 5/16/11 Event Last day to: meet and confer re initial disclosures, early settlement, ADR process selection, and discovery plan file ADR Certification signed by parties and counsel file either Stipulation to ADR Process or Notice of Need for ADR Phone Conference Governing Rule
F.R.Civ.P. 26(f) ADR L.R. 3.5 L.R.3-5

Civil L.R. 16-8 (b) ADR L.R. 3-5(b) Civil L.R. 16-8 (c) ADR L.R. 3-5(b)-(c)

Last day to file Rule 26(f) Report, complete F.R.Civ.P. 26(a) (1) initial disclosures or state objection in Rule Civil L.R . 16-9 26(f) Report and file Case Management Statement per Standing Order re Contents of Joint Case Management Statement Initial Case Management Conference
Civil L.R . 16-10

22 the interest of judicial economy, fairness, and will help effectuate a just speedy and inexpensive 23 determination of this action. See FED. R. CIV. P. 1. 24 Dated: 25 26 27 28
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March 22, 2011

SALTZMAN & JOHNSON LAW CORPORATION

By: _________/s/____________________ Shaamini A. Babu Attorney for Plaintiffs

1 Dated: March 22, 2011 2 3 4 5 6 7 8 Dated: March 22, 2011 9 10 11 12 13 14 15 Dated: March 22, 2011 16 17 18 19

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

SHEPPARD, MULLIN, RICHTER, HAMPTON, LLP By: ___________/s/___________________ Robert Friedman Dianne B. Smith M. Michael Cole* Attorneys for Defendant Arizona Pacific Materials II, LLC * Pro Hoc Vice Application Pending

TRAVIS & PON

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

20 ---------------------------------------------------------------------------------------------------------------------21 22 ORDER Based on the foregoing Stipulation of the parties, the deadlines currently pending in this

23 action are extended as specified above. 24 25 3/24/11 26 Dated: ___________________ 27 28 IT IS SO ORDERED.
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_______________________________________ PHYLLIS J. HAMILTONamilton H hy is J. Judge P United States DistrictllJudge
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1 2 I, the undersigned, declare: 3

PROOF OF SERVICE

I am employed in the County of San Francisco, State of California. I am over the age of

4 eighteen and not a party to this action. My business address is 44 Montgomery Street, Suite 2110, 5 San Francisco, California 94104. 6 On March 22, 2011, I served the following documents on the parties to this action in the

7 manner described below: 8 9
U

STIPULATION REGARDING CASE MANAGEMENT CONFERENCE AND RELATED DEADLINES; AND [PROPOSED] ORDER XX ELECTRONICALLY by causing said document to be electronically filed using the Court's Electronic Court Filing ("ECF") System and service was completed by electronic means by transmittal of a Notice of Electronic Filing on the registered participants of the ECF System. I served those parties who are not registered participants of the ECF Sysstem as indicated below. MAIL, being familiar with the practice of this office for the collection and the processing of correspondence for mailing with the United States Postal Service, and deposited in the United States Mail copies of the same to the business addresses set forth below, in a sealed envelope fully prepared.
U

10 11 12 XX 13 14 15 16 17 18 19 To: 20 21 22 23 24 25 26 27 28

FACSIMILE by causing said document to be transmitted by Facsimile machine to the number indicated after the address(es) set forth below. UPS for delivery the following business day by placing same for collection by UPS to the business addresses set forth below. PERSONAL DELIVERY by placing said document is a sealed envelope and causing it to be personally delivered to the address(es) set forth below.

Robert Friedman Dianne B. Smith M. Michael Cole Sheppard Mullin Richter & Hampton LLP 1300 I Street, NW 11th Floor East Washington, DC 20005 VIA ECF Defendant: Arizona Pacific Materials II LLC Sandra J. McMullin Steven L. Brenneman Ford & Harrison LLP 350 S. Grand Avenue, Suite 2300 Los Angeles, CA 90071
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1 2 3 4 5 6 7

VIA ECF Attorneys for Defendants Case Dealer Holding Company LLC and CNH America LLC Monte S. Travis Law Offices of Travis & Pon 2271 California Street San Francisco, CA 94115 VIA MAIL Defendants: Defendants Dean McLain, Robert Rubin, and Rubin Family Irrevocable Trust I declare under penalty of perjury that the foregoing is true and correct and that this

8 declaration was executed on this 22ND day of March, 2011, at San Francisco, California. 9 10 Barbara Souza 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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/S/