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Crosthwaite v. Ryan McClure Excavation

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


February 27, 2009

GIL CROSTHWAITE, ET AL., PLAINTIFFS,
v.
RYAN MCCLURE EXCAVATION, INC. DEFENDANT.

The opinion of the court was delivered by: Judge: The Honorable Jeffrey S. White

REQUEST FOR CONTINUANCE OF CASE MANAGEMENT CONFERENCE; AND DECLARATION OF SHAAMINI A. BABU IN SUPPORT THEREOF Time: 1:30 p.m. Ctrm: 2, 17th Floor

1. This action was filed on May 9, 2008, to recover delinquent fringe benefit contributions pursuant to the Employee Retirement Income Security Act of 1974 (ERISA).

2. Saltzman & Johnson Law Corporation is counsel for Plaintiffs Gil Crosthwaite, et al. ("Plaintiffs"). Defendant Ryan McClure Excavation, Inc. ("Defendant") is represented by legal counsel Murphy, Campbell, Guthrie & Alliston, but Defendant has not yet appeared in this action.

3. In July 2008, and again on December 8, 2008, Defendant's counsel provided relevant documents to Plaintiffs' counsel that established certain amounts owed by Defendant. In order to have sufficient opportunity to review the documents and meet and confer with Defendant's counsel, Plaintiffs' counsel requested continuances of the Case Management Conference.

4. On January 15, 2009, Defendant's counsel notified Plaintiffs' counsel in writing that it recently learned that Defendant's corporate status had been "suspended" and that pursuant to Revenue and Taxation Code §23301 and California Corporations Code §2205, the corporate powers, rights, privileges of Defendant had been suspended thereby prohibiting Defendant from defending itself in litigation.

5. On January 20, 2009, Plaintiffs' counsel requested additional relevant documents from Defendant which have not been provided to date.

6. On February 17, 2009, Plaintiffs counsel notified Defendant's counsel that Defendant must file an Answer before February 20, 2009. Defendant's counsel advised Plaintiffs' counsel that Defendant will not have revived its corporate status from "suspended" to "active" by that time and cannot appear in the action until Defendant's corporate status was "active."

Defendant's counsel could not provide a date certain when Defendant's corporate status would 11 become "active" and thus, Plaintiffs' counsel advised Defendant's counsel that Plaintiffs will 12 proceed to Request Entry of Default and thereafter, file a Motion for Default Judgment.

7. Plaintiffs' Request for Entry of Default was filed with the Court today.

8. Plaintiffs are attempting to obtain additional information relevant to their Motion for Default Judgment from other sources and will file said motion upon completion of their investigations.

9. Based on the foregoing, the parties respectfully request that the Case Management Conference, currently scheduled for February 27, 2009, be continued for approximately sixty (60) 3 days to allow Plaintiffs sufficient opportunity to gather necessary information and prepare their Motion for Default Judgment. It is furthermore requested that all previously set deadlines and dates related to this case be continued as well.

I declare under penalty of perjury that I am the attorney for the plaintiffs in the above entitled action, and that the foregoing is true of my own knowledge. Executed this 18th day of February, 2009, at San Francisco, California.

IT IS SO ORDERED.

The currently set Case Management Conference is hereby continued to eadlines are extended 1:30 p.m. accordingly.

February 24, 2009

20090227

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