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)

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 [phone]
[phone] – Facsimile
5 [e-mail]
[e-mail]
6 [e-mail]
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

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Nov. 8
20 Dated: _____________, 2012

19

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P:\CLIENTS\OE3WL\CASES\D P Crushing\Stipulated Judgment\Stipulated Judgment [Final].docx

STIPULATION FOR ENTRY OF JUDGMENT
CASE NO.: C 12-03306 DMR