UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
May 21, 2009
BAY AREA PAINTERS AND TAPERS PENSION TRUST FUND, ET AL., PLAINTIFFS,
NUNN BETTER PAINTING, INC., A CALIFORNIA CORPORATION, DEFENDANT.
REQUEST TO EXTEND TIME FOR SERVICE PURSUANT TO F.R.C.P. 4(m); DECLARATION OF M. KAPLAN IN SUPPORT THEREOF
Plaintiffs respectfully request that the Court, under Federal Rules of Civil Procedure Rule 4(m), issue an Order extending the time for service of the Complaint and Summons on Defendant NUNN BETTER PAINTING, INC. for approximately 120 days, as follows:
1. A Complaint was filed in this action on January 21, 2009, to compel an audit of Defendant's records by the Plaintiffs, since Defendant was unresponsive to Plaintiffs' prior requests.
2. Prior to service of the Complaint and Summons, however, Defendant scheduled an audit for February 12 and 13, 2009, for the period of January 1, 2005 through the date of review.
3. The Trust Funds' auditor has reviewed the four (4) years of records submitted by Defendant, and has advised me that some amounts have been found due in under-paid contributions. The auditor anticipates that the complex report will be completed this week.
4. Thereafter, the report will be submitted for an internal review by a supervising partner of the auditing firm (approximately one week), then sent to Defendant for two (2) weeks for review and comments, and for Defendant to address any objections. Finally, if no objections are raised, the auditor will forward the report to the Plaintiff's administrator for billing. Defendant will then be allowed (10) days to submit payment for amounts found due on the audit.
5. Pursuant to Federal Rules of Civil Procedure Rule 4(m), Plaintiffs have 120 days from the date the complaint was filed to serve Defendants. The time period to serve Defendants will expire on May 21, 2009, but Plaintiffs will need additional time to complete the audit process and to determine if pursuing legal action will be necessary.
6. Service of Plaintiffs' Complaint is inappropriate at this time, as Defendant has now complied with Plaintiffs' request for audit, and has not yet refuted payment of amounts due, since that amount has not yet been determined or submitted by Defendant. In order to avoid filing another suit for amounts found due on the audit, and to save the Court's time and minimize attorneys' fees and costs, Plaintiffs therefore respectfully request that the Court issue an Order extending the time for service of the Complaint and Summons for a period of 120 days to allow the Plaintiffs sufficient time to complete the audit process and to determine if the service of process is even necessary to resolve payment of the amounts due. 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 to the best of my knowledge and belief.
Executed this 20th day of May, 2009 at San Francisco, California.
SALTZMAN & JOHNSON LAW CORPORATION Muriel B. Kaplan Attorneys for Plaintiffs
IT IS SO ORDERED.
The time limit for service of the Complaint and Summons in this action is hereby extended to Sept. __________, 2009.
Case Management Conference is continued to October 19, 2009 at 4:00 p.m.
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