Operating Engineers Pension Trust Fund et al v. Terrasearch et al

Filing 138

STIPULATION AND JUDGMENT. Signed by Judge ARMSTRONG on 6/6/13. (lrc, COURT STAFF) (Filed on 6/6/2013)

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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 (415) 882-7900 4 (415) 882-9287 – Facsimile djohnson@sjlawcorp.com 5 sbabu@sjlawcorp.com 6 Attorneys for Plaintiffs 7 8 9 10 11 12 13 14 15 16 17 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OPERATING ENGINEERS’ PENSION Case No.: CV 10-04964 SBA (LB) TRUST FUND, et al., STIPULATION FOR ENTRY OF Plaintiffs, JUDGMENT AGAINST TERRASEARCH, INC. AND 3 MAK vs. AND JUDGMENT; DISMISSAL WITH PREJUDICE OF DEFENDANTS TERRASEARCH, et al, TERRASEARCH GULF, A CALIFORNIA PARTNERSHIP, DOE 1 Defendants. TERRASEARCH GULF, A FOREIGN PARTNERSHIP, SIMON MAKDESSI, AND ISSAM MAKDISSY; AND JUDGMENT AND ORDER OF DISMISSAL IT IS HEREBY STIPULATED by and between Plaintiffs Operating Engineers’ Pension 18 Trust Fund, F.G. Crosthwaite and Russell E. Burns, as Trustees (collectively “Plaintiffs” or 19 “Plan”), and Defendants Terrasearch, 3 MAK LLC, Terrasearch Gulf, identified in this action as a 20 California partnership, Terrasearch Gulf, identified in this action as DOE 1 a foreign partnership, 21 Simon Makdessi, and Issam Makdissy (collectively “Defendants”) as follows: 22 1. On or about October 1, 2009, Defendant Terrasearch made a complete withdrawal 23 24 from the Plan. As a result, Defendant Terrasearch became subject to withdrawal liability under 25 ERISA §4203(a) (29 U.S.C. §1383(a)). 26 27 2. Defendant Terrasearch and its control group members were assessed withdrawal liability of $2,671,570 (“Withdrawal Liability”) by the Plan on July 27, 2010. 28 STIPULATION FOR ENTRY OF JUDGMENT CASE NO.: CV 10-04964 SBA 1 3. Terrasearch and 3 MAK LLC are members of the control group under ERISA 2 4001(b)(1) (29 U.S.C. §1301(b)) and thus, are treated as a single employer and are jointly and 3 severally liable for the withdrawal liability. 4 4. Defendants Terrasearch and 3 MAK LLC hereby agree to this Judgment entered 5 6 again st Defendants Terrasearch and 3 MAK LLC in favor of Plaintiffs for the Withdrawal 7 Liability of $2,671,570. 8 5. Defendants Terrasearch and 3 MAK LLC and any successors-in-interest and the 9 control group members of any successors-in-interest shall be bound by this Judgment. 10 6. Pursuant to the terms of the Settlement Agreement (“the Settlement Agreement”), 11 12 the parties hereby stipulate to dismissal of this action with prejudice as to Defendants Terrasearch 13 Gulf, identified in this action as a California partnership, Terrasearch Gulf, identified in this action 14 as DOE 1 a foreign partnership, and Simon Makdessi, and Issam Makdissy as individuals and as 15 control group members of Terrasearch and 3 Mak, LLC. 16 7. Each party to this action shall bear their own attorneys’ fees and costs arising from 17 or related to the Withdrawal Liability and/or this action. 18 19 8. In the event of the filing of a bankruptcy petition by Defendants, the parties agree 20 that any payments made under the Settlement Agreement, shall be deemed to have been made in 21 the ordinary course of business as provided under 11 U.S.C. §547(c)(2) and shall not be claimed 22 by Defendants as a preference under 11 U.S.C. §547 or otherwise. Defendants nevertheless 23 24 25 represents that no bankruptcy filing is anticipated. 9. Any failure on the part of the Plaintiffs to take action against Defendants under this 26 Judgment in the event of any breach by Defendants of any provisions herein shall not be deemed a 27 waiver of any remedies and rights available to the Plaintiffs under this Judgment in connection 28 with any subsequent breach by Defendants of any provisions herein. STIPULATION FOR ENTRY OF JUDGMENT CASE NO.: CV 10-04964 SBA 1 10. All parties hereto represent and warrant that they have had the opportunity to be or 2 have been represented by counsel of their own choosing in connection with entering this Judgment 3 under the terms and conditions set forth herein, and that they enter into this Judgment voluntarily. 4 11. The persons executing this Judgment represent and warrant that they have the 5 6 7 authority to enter into this Judgment on behalf of the parties hereto. 12. This Judgment may be executed in any number of counterparts and by facsimile, 8 each of which shall be deemed an original and all of which shall constitute together one and the 9 same instrument. 10 13. The parties acknowledge and agree that the Court retain jurisdiction to enforce the 11 12 terms of the Settlement Agreement. 13 TERRASEARCH 3 MAK, LLC TERRASEARCH GULF _______________________ Issam Makdissy Dated: May ___, 2013 ________________________ Issam Makdissy Dated: May __, 2013 14 _______________________ 15 Issam Makdissy 16 Dated: May ___, 2013 17 _________________________ Simon Makdessi 19 Dated: May ___, 2013 18 _______________________ Simon Makdessi Dated: May ___, 2013 20 21 SIMON MAKDESSI ISSAM MAKDISSY OPERATING ENGINEERS’ PENSION TRUST FUND _______________________ Issam Makdissy Dated: May ___, 2013 ________________________ Russell E. Burns, Trustee Dated: May __, 2013 22 23 _________________________ Simon Makdessi 24 Dated: May ___, 2013 25 26 27 ________________________ F.G. Crosthwaite, Trustee Dated: May __, 2013 28 STIPULATION FOR ENTRY OF JUDGMENT CASE NO.: CV 10-04964 SBA 1 JUDGMENT and ORDER OF DISMISSAL 2 Based on the foregoing, Judgment is hereby entered against Defendants Terrasearch and 3 3 4 MAK LLC as stipulated above. In addition, this action is hereby dismissed with prejudice as to 5 Defendants Terrasearch Gulf, identified in this action as a California partnership, Terrasearch 6 Gulf, identified in this action as DOE 1 a foreign partnership, Simon Makdessi, and Issam 7 Makdissy. The Court shall retain jurisdiction to enforce the terms of the Settlement Agreement 8 9 and incorporated in this Judgment and Order. 10 IT IS SO ORDERED. 11 12 Dated: _6/6/13 13 ______________________________________ HONORABLE SAUNDRA B. ARMSTRONG UNITED STATES DISTRICT COURT JUDGE 14 15 16 17 Firmwide:120059551.1 068393.1001 18 19 20 21 22 23 24 25 26 27 28 STIPULATION FOR ENTRY OF JUDGMENT CASE NO.: CV 10-04964 SBA

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