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Palmtree Acquisition Corporation, A Delaware Corporation v. Michael R. Neely

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


May 31, 2011

PALMTREE ACQUISITION CORPORATION, A DELAWARE CORPORATION, PLAINTIFF,
v.
MICHAEL R. NEELY, AN INDIVIDUAL, PERRY J. NEELY, AN INDIVIDUAL; GARY NEELY,
AN INDIVIDUAL; MICHAEL R. NEELY, PERRY J. NEELY AND GARY NEELY DBA MIKE'S ONE
HOUR CLEANERS; CHARLES FREDERICK HARTZ DBA PAUL'S SPARKLE CLEANERS;
CHARLES F. HARTZ, AN INDIVIDUAL; MULTIMATIC CORPORATION, A NEW JERSEY CORPORATION; WESTERN STATES DESIGN, A CALIFORNIA CORPORATION; MCCORDUCK PROPERTIES LIVERMORE, LLC, A DELAWARE LIMITED LIABILITY COMPANY INDIVIDUALLY AND AS THE SUCCESSOR TO JOHN MCCORMICK, KATHLEEN MCCORDUCK, PAMELA MCCORDUCK, SANDRA MCCORDUCK MARONA,
AND IMA FINANCIAL CORPORATION, A CALIFORNIA CORPORATION; STARK INVESTMENT COMPANY,
A CALIFORNIA GENERAL PARTNERSHIP; GRUBB & ELLIS REALTY INCOME TRUST, LIQUIDATING TRUST,
A CALIFORNIA TRUST; AND DOES 1-20, INCLUSIVE,
DEFENDANTS. THE KIRRBERG CORPORATION, FORMERLY KNOWN AS MULTIMATIC CORPORATION, A NEW JERSEY CORPORATION; AND STARK INVESTMENT COMPANY, L.P., A CALIFORNIA LIMITED PARTNERSHIP, THIRD PARTY PLAINTIFFS,
v.
DOROTHY ANDERSON, TRUSTEE OF THE ANDERSON MARITAL TRUST, DATED FEBRUARY 28, 1979,
AS AMENDED AND RESTATED AUGUST 31, 1994; 8 AND DOROTHY ANDERSON,
TRUSTEE OF THE ANDERSON TAX DEFERRAL TRUST, DATED FEBRUARY 28, 1979,
AS AMENDED AND RESTATED AUGUST 31, 1994,
THIRD PARTY DEFENDANTS.

The opinion of the court was delivered by: Hon. Marilyn H. Patel

Paul Kozachenko, Esq., SBN: 104601 Selena P. Ontiveros, Esq., SBN: 211790 GONSALVES & KOZACHENKO 1133 Auburn Street Fremont, CA 94538 Telephone: (510) 770-3900 Facsimile: (510) 657-9876 Attorneys for Defendant and Third Party Plaintiff Stark Investment Company, a California general partnership

Date: June 6, 2011

Time: 2:00 p.m.

Courtroom: 15, 18th floor

STIPULATION AND [PROPOSED ORDER] CONTINUING CASE MANAGEMENT CONFERENCE

The parties who have appeared in the above-captioned action have met and conferred and jointly submit the following Stipulation and Proposed Order continuing the Case Management Conference currently scheduled for June 6, 2011 at 2:00 p.m. to a date in October that is available on the Court's calendar.

1. The Plaintiff and Defendants, with the exception of Grubb & Ellis Realty Income Trust, Liquidating Trust, ("Responding Parties") have been mediating this matter with Timothy Gallagher, Esq., along with other potentially responsible parties, and are continuing to do so, while simultaneously working cooperatively to respond to the Regional Water Quality Control Board's ("RWQCB") directives.

2. At the last Case Management Conference on September 27, 2010, the Court "administratively closed" the case, subject to the Parties' notice to put the case back on calendar.

The Third Amended Third Party Complaint was filed on March 21, 2011 against Third Party Defendants Dorothy Anderson, Trustee of The Anderson Marital Trust, dated February 28, 1979, as amended and restated August 31, 1994; and Dorothy Anderson, Trustee of The Anderson TaX Deferral Trust, dated February 28, 1979, as amended and restated August 31, 1994. The deadline for Third Party Defendants to respond is June 1, 2011.

3. Since the last Case Management Conference, the Responding Parties, through their various technical consultants, have implemented a work plan that the RWQCB had approved. On March 31, 2011, the Responding Parties submitted a Remedial Investigation report to the RWQCB containing a summary of their technical investigation of the site and proposed remedial alternatives. The RWQCB is currently reviewing the Responding Parties' report. In the meantime, the Responding Parties are requesting bids from contractors for the design and installation of remedial actions proposed in their report.

4. The Responding Parties are currently engaged in mediation with Mr. Gallagher to fund the recommended remedial actions. These sessions, which are presently underway, are scheduled through July 2011.

5. Therefore, to allow the Responding Parties to continue their informal negotiations between themselves with Mr. Gallagher, the Responding Parties stipulate that the case management conference currently scheduled for June 6, 2011 be continued to a date in October that is available on the Court's calendar.

ORDER

The Case Management Conference scheduled for June 6, 2011 at 2:00 p.m. is continued to October ___, 2011 at 3:00 p.m. The Stipulation and Order entered by the Court on September 15, 2008 remains in effect, including the stay on discovery.

Dated:

Marilyn H. Patel Judge of the United States District Court

20110531

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