Pension Trust Fund For Operating Engineers et al v. D P Crushing, Inc. et al

Filing 14

Order by Magistrate Judge Donna M. Ryu granting 13 Stipulation for Entry of Judgment.(dmrlc1, COURT STAFF) (Filed on 11/8/2012)

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RICHARD C. JOHNSON (SBN 40881) 1 SHAAMINI A. BABU (SBN 230704) JULIE A. OSTIL (SBN 215202) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 4 (415) 882-7900 (415) 882-9287 – Facsimile 5 6 7 Attorneys for Plaintiffs 8 UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 PENSION TRUST FUND FOR OPERATING ENGINEERS; F.G. CROSTHWAITE and 11 RUSSELL E. BURNS, as Trustees, 12 13 Case No.: C 12-03306 DMR STIPULATION FOR ENTRY OF JUDGMENT; JUDGMENT Plaintiffs, vs. 14 D P CRUSHING, INC., aka DP CRUSHING, 15 INC., a California Corporation; and DOES 120, 16 Defendant. 17 18 IT IS HEREBY STIPULATED by and between Plaintiffs Pension Trust Fund for 19 Operating Engineers, F.G. Crosthwaite and Russell E. Burns, as Trustees (collectively “Plaintiffs” 20 or “Plan”), and Defendant D P Crushing, Inc., aka DP Crushing, Inc., a California Corporation 21 (“Defendant” or “D P Crushing, Inc.”) as follows: 22 1. D P Crushing, Inc. was signatory to a collective bargaining agreement (“Bargaining 23 Agreement”) with the Operating Engineers Local Union No. 3 (“Union”) pursuant to which D P 24 Crushing, Inc. was required to make contributions to the Plan for all hours worked by its covered 25 employees within the jurisdiction of the Bargaining Agreement. 26 2. On or about February 1, 2009, D P Crushing, Inc. made a complete withdrawal 27 from the Plan. Thereafter, D P Crushing, Inc. was dissolved. As a result of the withdrawal, it is 28 the contention of the Plan that D P Crushing, Inc. became subject to withdrawal liability under P:\CLIENTS\OE3WL\CASES\D P Crushing\Stipulated Judgment\Stipulated Judgment [Final].docx STIPULATION FOR ENTRY OF JUDGMENT CASE NO.: C 12-03306 DMR 1 ERISA §4203(a) (29 U.S.C. §1383(a)). The Plan assessed withdrawal liability against D P 2 Crushing, Inc. in the amount of $12,252.00 on November 30, 2011. 3 4 3. Defendant D P Crushing, Inc. hereby agrees to a judgment entered against it and in 5 favor of Plaintiffs in the sum $23,098.42 calculated as follows: 6 7 8 9 10 11 Assessed Withdrawal Liability 10% Interest 1/1/12 – 10/10/12 20% Liquidated Damages Attorneys’ Fees 8/16/11 – 10/09/12 Costs – 9/23/11 – 10/09/12 TOTAL Amount $ 12,252.00 $ 947.52 $ 2,450.40 $ 4,790.50 Authority ERISA §4203(a) ERISA §502(g)(2)(B) ERISA §502(g)(2)(C)(ii) ERISA §502(g)(2)(D) $ 2,658.00 $ 23,098.42 12 13 4. The undersigned parties acknowledge and agree that nothing contained herein shall 14 be considered a waiver of any claims, rights, and/or remedies that Plaintiffs may have against 15 others as allowed by law. 16 5. In the event of the filing of a bankruptcy petition by Defendant, the parties agree 17 that any payments made under this Judgment shall be deemed to have been made in the ordinary 18 course of business as provided under 11 U.S.C. §547(c)(2) and shall not be claimed by Defendant 19 as a preference under 11 U.S.C. §547 or otherwise. Defendant nevertheless represents that no 20 bankruptcy filing is anticipated. 21 6. Any failure on the part of the Plaintiffs to take action against Defendant under this 22 Judgment in the event of any breach by Defendant of any provisions herein shall not be deemed a 23 waiver of any remedies and rights available to the Plaintiffs under this Judgment in connection 24 with any subsequent breach by Defendant of any provisions herein. 25 7. Checks for payments under this Judgment shall be made payable to the “Pension 26 Plan for Operating Engineers Pension Trust Fund” and delivered to Julie A. Ostil, Saltzman & 27 Johnson, 44 Montgomery Street, Suite 2110, San Francisco, California, 94104, or to such other 28 address as may be specified by the Plan. However, it is understood by all parties that Defendant P:\CLIENTS\OE3WL\CASES\D P Crushing\Stipulated Judgment\Stipulated Judgment [Final].docx STIPULATION FOR ENTRY OF JUDGMENT CASE NO.: C 12-03306 DMR 1 currently does not have the financial capacity to pay for all or part of the judgment, and that 2 Defendant is a dissolved California corporation. 3 8. Should any provision of this Judgment be declared or determined by any court of 4 competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and 5 enforceability of the remaining parts, terms or provisions shall not be affected thereby and any 6 such illegal, unenforceable or invalid part, term, or provision shall be deemed not to be part of this 7 Judgment. 8 9. All parties hereto represent and warrant that they have had the opportunity to be or 9 have been represented by counsel of their own choosing in connection with entering this Judgment 10 under the terms and conditions set forth herein, and that they enter into this Judgment voluntarily. 11 10. The persons executing this Judgment represent and warrant that they have the 12 authority to enter into this Judgment on behalf of the parties hereto. 13 11. This Judgment may be executed in any number of counterparts and by facsimile, 14 each of which shall be deemed an original and all of which shall constitute together one and the 15 same instrument. 16 12. The parties request that the Court retain jurisdiction over the parties and this matter 17 until such time as the Judgment is satisfied in full. 18 19 20 PLAINTIFFS: 21 Pension Trust Fund for Operating Engineers 22 23 24 Dated: November 6, 2012. 25 Dated: November 7, 2012. By: /s/ Russell E. Burns___________________________ Russell E. Burns, Co-Chairman By: /s/ F. G. Crosthwaite__________________________ F.G. Crosthwaite, Co-Chairman 26 27 28 P:\CLIENTS\OE3WL\CASES\D P Crushing\Stipulated Judgment\Stipulated Judgment [Final].docx STIPULATION FOR ENTRY OF JUDGMENT CASE NO.: C 12-03306 DMR DEFENDANTS: 1 D P CRUSHING INC., aka DP CRUSHING, INC., a California corporation 2 Dated: November 5, 2012 3 By: /s/ David Arthur Pile_________________________ David Arthur Pile, President 4 5 APPROVED AS TO FORM: 6 ATTORNEYS FOR PLAINTIFFS: 7 Dated: November 6, 2012 Saltzman & Johnson Law Corporation 8 10 By: /s/ Julie A. Ostil_____________________________ Julie A. Ostil Attorneys for Plaintiffs 11 ATTORNEYS FOR DEFENDANT: 12 Dated: November 5, 2012 Magarian Law LLP 9 13 By: /s/ Krista L. DiMercurio___________________ Krista L. DiMercurio Attorneys for Defendant 14 15 16 17 18 ORDER IT IS SO ORDERED. Judgment is hereby entered under the terms described above. This Court shall retain jurisdiction of this matter until the judgment is satisfied. S DISTRICT TE ______________________________________ C TA Honorable Donna M. Ryu 21 UNITED STATES MAGISTRATE JUDGE 22 ORD T IS SO S ER 27 A H 26 u a M. Ry onn Judge D FO RT 25 R NIA I NO 24 ERED LI UNIT ED 23 RT U O Nov. 8 20 Dated: _____________, 2012 19 N F D IS T IC T O R C 28 P:\CLIENTS\OE3WL\CASES\D P Crushing\Stipulated Judgment\Stipulated Judgment [Final].docx STIPULATION FOR ENTRY OF JUDGMENT CASE NO.: C 12-03306 DMR

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