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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 31, 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 TRIAL DATE: NONE 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: United States District Court Judge Judge Phyllis J. Hamilton

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

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 7 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, 11 counsel for APM II also informed Plaintiffs' counsel that APM I was a dissolved entity. A 12 stipulation filed on March 22, 2011 reflects this.

3. On March 16, 2011, the Second Amended Complaint was filed. Although 14 advised that APM I is a dissolved entity and that the appearance by APM II's counsel on APM 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 May 5, 2011, the parties entered into a stipulation and proposed order to extend the time up 21 until May 26, 2011 for APM I to respond to the Second Amended Complaint.

5. The parties are continuing to explore the nature of APM I's status. In 23 addition, counsel for APM II has informed Plaintiff that it intends to file a motion to strike 24 the notice of appearance/motion to withdraw its appearance on behalf of APM I. In light 25 of this, and so as to continue to preserve APM I's rights while that motion is pending, the 26 parties agree to extend the time for APM I to respond to the Second Amended Complaint 27 28

APM I's status. So as to preserve APM I's rights and to allow for continued discussion, on to July 5, 2011 or five days after the motion to strike the notice of appearance/motion to 2 withdraw is decided by the Court, whichever is later.

6. The Parties believe that a further extension of the deadline to respond to the

Second Amended Complaint under the circumstances here promotes the interest of judicial 5 economy, fairness, and will help effectuate a just, speedy and inexpensive determination of 6 this action. See FED. R. CIV. P. 1.

7. The requested extension will not materially delay the disposition of this 8 action, as the Second Amended Complaint was recently filed with the Court on March 16, 2011 and the initial Case Management Conference will be held in June 2011.

Dated: May 26, 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 26, 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 2

July 5, 2011 or five days after the anticipated motion to strike the notice of 3 appearance/motion to withdraw is decided by the Court, whichever is later, to respond to 4 the Second Amended Complaint..

IT IS SO ORDERED

20110531

© 1992-2011 VersusLaw Inc.



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