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

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


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 before Plaintiffs' Reply Brief was filed.

Although it was issued and filed on November 3, 2009, it was not available online at www.lexisnexis.com until November 21, 2009. The decision has not yet been published in an official or unofficial reporter. It was recently brought to the attention of Plaintiffs' counsel while conducting research online at www.lexisnexis.com, the online research system utilized by Plaintiffs' counsel. Thus, Plaintiffs seek leave of Court to file a Statement of Recent Decision in 26 accordance with Local Rule 7-3(d).

11. Although the decision was not issued by a court in this jurisdiction, Plaintiffs' counsel seek leave to file a Statement of Recent Decision in accordance with Local Rule 7-3(d) since the decision is relevant to the Motion for Summary Judgment and thus, may be persuasive to this Court when it considers and rules on the pending Motion for Summary Judgment.

12. Based on the foregoing, Plaintiffs respectfully request the Court to grant leave for Plaintiffs to file a Statement of Recent Decision pursuant to Local Rule 7-3(d) within three (3) 7 days from the date of the Court's order.

I declare under penalty of perjury that the foregoing is true and correct and that this Declaration was executed upon this 5th day of January, 2010, at San Francisco, California.

Dated: January 5, 2010

SALTZMAN & JOHNSON LAW CORPORATION

Shaamini A. Babu Attorneys for Plaintiffs

IT IS SO ORDERED.

This Court hereby grants leave under Local Rule 7-3(d) for Plaintiffs to file a Statement of Recent Decision within three (3) days from the date of this Order.

IT IS SO ORDERED

PROOF OF SERVICE

I, the undersigned, declare:

I am a citizen of the United States and am employed in the County of San Francisco, State of California. I am over the age of eighteen and not a party to this action. My business address is 44 Montgomery Street, Suite 2110, San Francisco, California 94104.

On January 5, 2010, I served the following document(s):

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

on the interested parties in said action by First Class U.S. Mail, by placing a true and exact copy of each document in a sealed envelope with postage thereon fully prepaid, in a United States Post Office box in San Francisco, California, addressed as follows:

Cassandra M. Ferrannini

DOWNEY BRAND LLP 621 Capitol Mall, 18th Floor Sacramento, CA 95814

I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on this 5th day of January, 2010, at San Francisco, California.

Catherine Jemera

20100107

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