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)

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: [phone]
4 Facsimile: 415-882-9287
[e-mail]
5 [e-mail]
Attorneys for Plaintiffs
6
Additional Counsel on the Following Page
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8
UNITED STATES DISTRICT COURT FOR THE

9

NORTHERN DISTRICT OF CALIFORNIA

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11 OPERATING ENGINEERS’ PENSION
TRUST FUND; F.G. CROSTHWAITE and
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RUSSELL E. BURNS, as Trustees,
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Plaintiffs,
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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
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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,
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Defendants.
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W02-WEST:5MMC1\403505789.1

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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: [e-mail]
30 Rockefeller Plaza, Suite 2400
4 New York, New York 10112
Telephone: [phone]
5 Facsimile: [phone]
6 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
7
Including Professional Corporations
DIANNE BAQUET SMITH, Cal. Bar No. 96713
8 E-mail: [e-mail]
333 S. Hope Street, 43rd Floor
9 Los Angeles, California 90071
Telephone: [phone]
10 Facsimile: [phone]
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
M. MICHAEL COLE Cal. Bar No. 235538
E-mail: [e-mail]
Four Embarcadero Center
Seventeenth Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

17 Attorneys for Defendant Arizona Pacific Materials II, LLC
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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.
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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
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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

9
By /s/ M. Michael Cole
ROBERT FRIEDMAN (Pro Hac App. Pending)
DIANNE B. SMITH
M. MICHAEL COLE

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Attorneys for Defendant
ARIZONA PACIFIC MATERIALS II, LLC

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15 Dated: May 4, 2011
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SALTZMAN & JOHNSON LAW CORPORATION

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By /s/ Shaaminni A. Babu
SHAAMINI BABU

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19

Attorneys for Plaintiffs

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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: ________________

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Hamilto

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hyllis J.

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Judge P

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United States District Court Judge

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