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Operating Engineers' Pension Trust Fund v. Clarks Welding and Machine

January 7, 2010

OPERATING ENGINEERS' PENSION TRUST FUND; GIL CROSTHWAITE AND RUSS BURNS, AS TRUSTEES, PLAINTIFFS,
v.
CLARKS WELDING AND MACHINE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Samuel Conti Judge

PLAINTIFF' REQUEST FOR LEAVE TO FILE STATEMENT OF RECENT DECISION IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; DECLARATION OF SHAAMINI A. BABU IN SUPPORT THEREOF; AND [PROPOSED] ORDER

[Local Rule 7-3(d)]

I, Shaamini A. Babu, declare that I have personal knowledge of the following facts and if called as a witness I could testify competently thereto:

1. I am an attorney licensed to practice law in the State of California. I am an associate at Saltzman & Johnson Law Corporation, attorneys for Plaintiffs herein.

2. On October 30, 2009, Plaintiffs filed their Motion for Summary Judgment in this action. Docket No. 50.

3. Defendants filed their Opposition to Plaintiffs' Motion for Summary Judgment on November 13, 2009. Docket No. 77.

4. Thereafter, Plaintiffs' filed their Reply Brief on November 19, 2009. Docket No. 78.

5. On November 30, 2009, this Court vacated the hearing on the Motion for Summary Judgment and stated it would be deciding said motion on the papers. Docket No. 90.

6. Pursuant to the Court's November 30th Order, Defendants' filed a Sur-Reply on December 3, 2009. Docket No. 91.

7. Neither the Defendants nor the Plaintiffs have cited the following relevant decision that was issued on November 3, 2009, in any papers relating to the Motion for Summary Judgment: Amalgamated Lithographers of America Lithographic Industry Pension Plan v. UNZ & So. Incorp., 2009 U.S. Dist. Lexis 108324 at *33-36 (S.D.N.Y. Nov. 3, 2009) (holding that if laches is claimed as a defenses to a claim for withdrawal liability, the issue must be arbitrated.)

8. The Motion for Summary Judgment is still under submission with the Court. On December 11, 2009, the Court issued an order requesting supplement briefs relating to the impact of Tracy Mainguy's continued deposition on said motion. Docket No. 105. Pursuant to said order, Defendants supplement brief is due on January 15, 2010, and Plaintiffs' supplement brief is due on January 20, 2010.

9. This Court's Civil Local Rules 7-3(d) provides:

Supplementary Material. Before the noticed hearing date, counsel may bring to the Court's attention a relevant judicial opinion published after the date the opposition or reply was filed by serving and filing a Statement of Recent Decision, containing a citation to and providing a copy of the new opinion -- without argument. Otherwise, once a reply is filed, no additional memoranda, papers or letters may be filed without prior Court approval.

10. The decision in UNZ & So. Incorp. was issued and filed ten (10) days before Defendants' Opposition was filed and sixteen (16) days ...


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