Bay Area Painters and Tapers Pension Trust Fund et al v. N.J. Kann Painting, Inc.

Filing 33

ORDER by Judge Claudia Wilken Granting 32 Motion for Entry of Conditional Dismissal Without Prejudice. (ndr, COURT STAFF) (Filed on 9/24/2013)

1 Muriel B. Kaplan, Esq. (SBN 124607)
Michele R. Stafford, Esq. (SBN 172509)
2 SALTZMAN & JOHNSON LAW CORPORATION
44 Montgomery Street, Suite 2110
3 San Francisco, CA 94104
[phone]
4 [phone] – Facsimile
[e-mail]
5 [e-mail]
6 Attorneys for Plaintiffs
7
8

UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10 BAY AREA PAINTERS AND TAPERS
PENSION TRUST FUND, et al.
11
Plaintiffs,
12
v.
13
N.J. KANN PAINTING, INC., a California
14 corporation,

Case No.: C12-5542 CW
REQUEST FOR ENTRY OF
CONDITIONAL DISMISSAL WITHOUT
PREJUDICE;
DECLARATION OF MICHELE R.
STAFFORD IN SUPPORT THEREOF;
ORDER THEREON

15

Defendant.

16
17

For good cause shown below, Plaintiffs herein respectfully request that the Court vacate

18 the calendar in this Action, and conditionally dismiss this matter for thirty (30) days without
19 prejudice, pending bank clearance of Defendant’s settlement payment.
20

1.

As the Court’s records will reflect, this action was filed on October 29, 2012 to

21 compel Defendant’s compliance with its obligations under the Collective Bargaining Agreement
22 to which it is signatory. Plaintiffs filed suit for payment of contributions due them for the periods
23 of December 2010 through February 2011 and February through August 2012, and for liquidated
24 damages and interest accrued on late-paid contributions since August 2010.
25

2.

Service on Defendant was completed on October 30, 2012. A Proof of Service of

26 Summons was filed with the Court on November 6, 2012. [Docket No. 12.]
27

3.

Plaintiffs were contacted by Defendant’s counsel, requesting an informal

28 resolution. Plaintiffs’ counsel and Defendant’s counsel engaged in settlement discussions and
-1REQUEST FOR ENTRY OF CONDITIONAL DISMISSAL WITHOUT PREJUDICE
Case No.: C12-5542 CW
C:\Users\rileyn\AppData\Local\Temp\notes95EC0B\Request for Conditional Dismissal 091713.docx

1 payment of the agreed-upon settlement amount has been received by Plaintiffs. The terms of the
2 settlement authorizes Plaintiffs to deposit Defendant’s payment upon filing a dismissal of this
3 action.
4

4.

Plaintiffs respectfully request that the Court therefore conditionally dismiss this

5 matter without prejudice for thirty (30) days.
6

5.

Plaintiffs shall have thirty (30) days from the date of entry of the conditional

7 dismissal to reopen the action in the event that Defendant’s check fails to clear the bank.
8

6.

If Plaintiffs do not request that the Court reopen this matter within thirty (30) days

9 of the date of entry of the conditional dismissal, the Court shall completely dismiss this action.
10

7.

Plaintiffs have not previously filed or dismissed any similar action against

11 Defendant and Defendant has not answered or otherwise appeared in this action.
12

I declare under penalty of perjury that I am the attorney for the Plaintiffs in the above

13 entitled action, and that the foregoing is true of my own knowledge.
14

Executed this 20th day of September, 2013, at San Francisco, California.
SALTZMAN & JOHNSON
LAW CORPORATION

15
16
By:
17

/S/
Michele R. Stafford
Attorneys for Plaintiffs

18
19 IT IS SO ORDERED.
20

This case shall be conditionally dismissed without prejudice, and the Court shall retain

21 jurisdiction of the matter for thirty (30) days. In the event that Plaintiff does not reopen the case
22 within thirty (30) days of the date of entry of the conditional dismissal, the Court shall dismiss this
23 matter in its entirety.
24

9/24/2013
25 Date: ____________________
26

_________________________________________
THE HONORABLE CLAUDIA WILKEN
UNITED STATES DISTRICT COURT

27
28
-2REQUEST FOR ENTRY OF CONDITIONAL DISMISSAL WITHOUT PREJUDICE
Case No.: C12-5542 CW
C:\Users\rileyn\AppData\Local\Temp\notes95EC0B\Request for Conditional Dismissal 091713.docx

PROOF OF SERVICE:

1
2 I, the undersigned, declare:

I am employed in the County of San Francisco, State of California. I am over the age of

3

4 eighteen and not a party to this action. My business address is 44 Montgomery Street, Suite 2110,
5 San Francisco, California 94104.
6

On September 20, 2013, I served the following document(s) on the parties to this action in

7 the manner described below:
8
9

REQUEST FOR ENTRY OF CONDITIONAL DISMISSAL WITHOUT PREJUDICE;
DECLARATION OF MICHELE R. STAFFORD IN SUPPORT THEREOF;
[PROPOSED] ORDER THEREON

10 XX
11

U

MAIL, being familiar with the practice of this office for the collection and the processing
of correspondence for mailing with the United States Postal Service, and deposited in the
United States Mail copies of the same to the business addresses as specified below, in a
sealed envelope fully prepared.

12
To:
13
Attorney for Defendant:
14
15
16
17

William C. Dresser, Esq.
Law Office of William C. Dresser
4 N 2nd Street, Suite 1230
San Jose, California 95113
I declare under penalty of perjury that the foregoing is true and correct and that this

18 declaration was executed on this 20th day of September, 2013, at San Francisco, California.
19
/S/
Alicia Rutkowski

20
21
22
23
24
25
26
27
28

-3REQUEST FOR ENTRY OF CONDITIONAL DISMISSAL WITHOUT PREJUDICE
Case No.: C12-5542 CW
C:\Users\rileyn\AppData\Local\Temp\notes95EC0B\Request for Conditional Dismissal 091713.docx