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Operating Engineers' Pension Trust Fund; F.G. v. Western Power & Equipment Corp.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


May 10, 2011

OPERATING ENGINEERS' PENSION TRUST FUND; F.G. CROSTHWAITE AND RUSSELL E. BURNS, AS TRUSTEES,
PLAINTIFFS,
v.
WESTERN POWER & EQUIPMENT CORP., AN OREGON CORPORATION; AND
WESTERN POWER & EQUIPMENT CORP., A DELAWARE CORPORATION;
ARIZONA PACIFIC MATERIALS II, LLC, AN ARIZONA LIMITED LIABILITY COMPANY;
CHARLES DEAN MCLAIN, AS AN INDIVIDUAL;
ROBERT RUBIN, AS AN INDIVIDUAL;
RUBIN FAMILY IRREVOCABLE STOCK TRUST;
CASE DEALER HOLDING COMPANY, LLC
(F/K/A CNH DEALER HOLDING COMPANY, LLC, A DELAWARE LIMITED LIABILITY COMPANY;
CNH AMERICA, LLC, A DELAWARE LIMITED LIABILITY COMPANY; AND DOES 1-20, DEFENDANTS.

The opinion of the court was delivered by: Judge Phyllis Hamilton United States District Court Judge

RICHARD C. JOHNSON, Cal. Bar No. 40881 SHAAMINI A. BABU Cal. Bar No. 230704 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 San Francisco, CA 94104 Telephone: 415-882-7900 Facsimile: 415-882-9287 djohnson@sjlawcorp.com 5 sbabu@sjlawcorp.com Attorneys for Plaintiffs Additional Counsel on the Following Page

JOINT STIPULATION AND [PROPOSED ORDER] TO EXTEND TIME FOR ARIZONA PACIFIC MATERIALS, LLC TO RESPOND TO SECOND AMENDED COMPLAINT

Trial Date: None

Pursuant to Rule 6(b), FED. R. CIV. P., and Civil L.R. 6.1, Plaintiffs Operating Engineers' Pension Trust Fund, F.G. Croswaite and Russell E. Burns ("Plaintiffs") and Defendant Arizona Pacific Materials, LLC ("APM I"), hereby stipulate as follows:

1. The instant action is a complex action arising under the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), 29 U.S.C. § 1001 et 6 seq. Plaintiffs have named nine Defendants, and are seeking, among other things, money damages, liquidated damages, injunctive relief and attorneys' fees and costs.

2. On December 22, 2010, counsel for APM II inadvertently made an appearance on behalf of APM I. APM I is a dissolved entity. Accordingly, on March 18, 2011, counsel for APM II attempted to file a notice of withdrawal. On March 22, 2011, counsel for APM II also informed Plaintiffs' counsel that APM I was a dissolved entity. A stipulation filed on March 22, 2011 reflects this.

3. On March 16, 2011, the Second Amended Complaint was filed. Although advised that APM I is a dissolved entity and that the appearance by APM II's counsel on 1APM I's behalf was inadvertent, Plaintiff claims APM I was served with the Second

Amended Complaint and APM I's response was due on April 6, 2011.

4. Despite Plaintiff's view that APM I's response to the Second Amended Complaint was due on April 6, 2011, the Parties have been exploring the exact nature of APM I's status. So as to preserve APM I's rights and to allow for continued discussion, the 20 parties have agreed that APM I will have up until May 26, 2011 to respond to the Second 21 Amended Complaint.

5. The Parties believe that a further extension of the deadline to respond to the 23 Second Amended Complaint under the circumstances here promotes the interest of judicial 24 economy, fairness, and will help effectuate a just, speedy and inexpensive determination of 25 this action. See FED. R. CIV. P. 1. 26 27 28

6. The requested extension will not materially delay the disposition of this 2 action, as the Second Amended Complaint was recently filed with the Court on March 16, 2011 and the initial Case Management Conference has been reset for June 2, 2011.

7. Therefore, the Parties hereby confirm that APM I shall have until Thursday, May 26, 2011 to respond to the Second Amended Complaint. 6 7

Dated: May 4, 2011 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ M. Michael Cole ROBERT FRIEDMAN (Pro Hac App. Pending) DIANNE B. SMITH M. MICHAEL COLE Attorneys for Defendant ARIZONA PACIFIC MATERIALS II, LLC Dated: May 4, 2011 SALTZMAN & JOHNSON LAW CORPORATION By /s/ Shaaminni A. Babu SHAAMINI BABU Attorneys for Plaintiffs

PURSUANT TO STIPULATION, IT IS ORDERED that APM I shall have until Thursday, May 26, 2011 to respond to Plaintiffs' Second Amended Complaint.

IT IS SO ORDERED

20110510

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