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

Filing 72

STIPULATION AND ORDER TO EXTEND TIME FOR ARIZONA PACIFIC MATERIALS, LLC TO RESPOND TO SECOND AMENDED COMPLAINT re 70 Stipulation filed by Arizona Pacific Materials II LLC. Signed by Judge Phyllis J. Hamilton on 5/10/11. (nah, COURT STAFF) (Filed on 5/10/2011)

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1 RICHARD C. JOHNSON, Cal. Bar No. 40881 SHAAMINI A. BABU Cal. Bar No. 230704 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 Telephone: 415-882-7900 4 Facsimile: 415-882-9287 djohnson@sjlawcorp.com 5 sbabu@sjlawcorp.com Attorneys for Plaintiffs 6 Additional Counsel on the Following Page 7 8 UNITED STATES DISTRICT COURT FOR THE 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 OPERATING ENGINEERS’ PENSION TRUST FUND; F.G. CROSTHWAITE and 12 RUSSELL E. BURNS, as Trustees, 13 Plaintiffs, 14 15 v. Case No. CV 10-4460 PJH JOINT STIPULATION AND [PROPOSED ORDER] TO EXTEND TIME FOR ARIZONA PACIFIC MATERIALS, LLC TO RESPOND TO SECOND AMENDED COMPLAINT 16 WESTERN POWER & EQUIPMENT Trial Date: None CORP., an Oregon corporation; and 17 WESTERN POWER & EQUIPMENT 18 CORP., a Delaware corporation; ARIZONA PACIFIC MATERIALS II, LLC, an 19 Arizona limited liability company; 20 CHARLES DEAN McLAIN, as an individual; ROBERT RUBIN, as an 21 individual; RUBIN FAMILY IRREVOCABLE STOCK TRUST; CASE 22 DEALER HOLDING COMPANY, LLC 23 (f/k/a CNH DEALER HOLDING COMPANY, LLC), a Delaware limited 24 liability company; CNH AMERICA, LLC, a 25 Delaware limited liability company; and DOES 1-20, 26 Defendants. 27 28 W02-WEST:5MMC1\403505789.1 -1- 1 SHEPPARD, MULLIN, RICHTER & HAMPTON llp A Limited Liability Partnership Including Professional Corporations 2 ROBERT FRIEDMAN, N.Y. Bar No. 240414 (Pro Hac Vice) 3 E-mail: rfriedman@sheppardmullin.com 30 Rockefeller Plaza, Suite 2400 4 New York, New York 10112 Telephone: (212) 653-8700 5 Facsimile: (212) 653-8701 6 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership 7 Including Professional Corporations DIANNE BAQUET SMITH, Cal. Bar No. 96713 8 E-mail: dsmith@sheppardmullin.com 333 S. Hope Street, 43rd Floor 9 Los Angeles, California 90071 Telephone: (213) 620-1780 10 Facsimile: (213) 620-1398 11 12 13 14 15 16 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations M. MICHAEL COLE Cal. Bar No. 235538 E-mail: mmcole@sheppardmullin.com Four Embarcadero Center Seventeenth Floor San Francisco, CA 94111 Telephone: (415) 774-3143 Facsimile: (415) 403-6228 17 Attorneys for Defendant Arizona Pacific Materials II, LLC 18 19 20 21 22 23 24 25 26 27 28 W02-WEST:5MMC1\403505789.1 -2- 1 Pursuant to Rule 6(b), FED. R. CIV. P., and Civil L.R. 6.1, Plaintiffs Operating 2 Engineers’ Pension Trust Fund, F.G. Croswaite and Russell E. Burns (“Plaintiffs”) and 3 Defendant Arizona Pacific Materials, LLC (“APM I”), hereby stipulate as follows: 4 1. The instant action is a complex action arising under the Employee 5 Retirement Income Security Act of 1974, as amended, (“ERISA”), 29 U.S.C. § 1001 et 6 seq. Plaintiffs have named nine Defendants, and are seeking, among other things, money 7 damages, liquidated damages, injunctive relief and attorneys’ fees and costs. 8 2. On December 22, 2010, counsel for APM II inadvertently made an 9 appearance on behalf of APM I. APM I is a dissolved entity. Accordingly, on March 18, 10 2011, counsel for APM II attempted to file a notice of withdrawal. On March 22, 2011, 11 counsel for APM II also informed Plaintiffs' counsel that APM I was a dissolved entity. A 12 stipulation filed on March 22, 2011 reflects this. 13 3. On March 16, 2011, the Second Amended Complaint was filed. Although 14 advised that APM I is a dissolved entity and that the appearance by APM II's counsel on 15 APM I's behalf was inadvertent, Plaintiff claims APM I was served with the Second 16 Amended Complaint and APM I's response was due on April 6, 2011. 17 4. Despite Plaintiff's view that APM I's response to the Second Amended 18 Complaint was due on April 6, 2011, the Parties have been exploring the exact nature of 19 APM I's status. So as to preserve APM I's rights and to allow for continued discussion, the 20 parties have agreed that APM I will have up until May 26, 2011 to respond to the Second 21 Amended Complaint. 22 5. The Parties believe that a further extension of the deadline to respond to the 23 Second Amended Complaint under the circumstances here promotes the interest of judicial 24 economy, fairness, and will help effectuate a just, speedy and inexpensive determination of 25 this action. See FED. R. CIV. P. 1. 26 27 28 W02-WEST:5MMC1\403505789.1 -3- 1 6. The requested extension will not materially delay the disposition of this 2 action, as the Second Amended Complaint was recently filed with the Court on March 16, 3 2011 and the initial Case Management Conference has been reset for June 2, 2011. 4 7. Therefore, the Parties hereby confirm that APM I shall have until Thursday, 5 May 26, 2011 to respond to the Second Amended Complaint. 6 7 Dated: May 4, 2011 8 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 9 By /s/ M. Michael Cole ROBERT FRIEDMAN (Pro Hac App. Pending) DIANNE B. SMITH M. MICHAEL COLE 10 11 12 13 Attorneys for Defendant ARIZONA PACIFIC MATERIALS II, LLC 14 15 Dated: May 4, 2011 16 SALTZMAN & JOHNSON LAW CORPORATION 17 By /s/ Shaaminni A. Babu SHAAMINI BABU 18 19 Attorneys for Plaintiffs 20 21 22 PURSUANT TO STIPULATION, IT IS ORDERED that APM I shall have until 23 Thursday, May 26, 2011 to respond to Plaintiffs' Second Amended Complaint. 24 5/10/11 25 Dated: ________________ S DISTRICT TE C TA S UNIT ED 26 RT U O ____________________________ ERED O ORD IT IS S ER W02-WEST:5MMC1\403505789.1 -4- n Hamilto A H 28 hyllis J. LI RT Judge P FO NO 27 R NIA United States District Court Judge N F D IS T IC T O R C

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