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F.G. Crosthwaite, et al. v. Fremont Paving Company

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


April 5, 2012

F.G. CROSTHWAITE, ET AL. PLAINTIFFS,
v.
FREMONT PAVING COMPANY, INC., A CALIFORNIA CORPORATION, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: The Honorable Jeffrey S. White United States District Court Judge

Michele R. Stafford, Esq. (SBN 172509) Blake E. Williams, Esq. (SBN 233158) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, CA 94104 (415) 882-7900 4 (415) 882-9287 -- Facsimile mstafford@sjlawcorp.com 5 bwilliams@sjlawcorp.com 6 Attorneys for Plaintiffs

PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT and REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER THEREON

Date: April 6, 2012 Time: 1:30 p.m. Ctrm: 11, 19th Floor Judge: Honorable Jeffrey S. White

Plaintiffs herein respectfully submit their Case Management Statement, requesting that the 18 Case Management Conference, currently on calendar for April 6, 2012, be continued for 19 approximately 60 -- 90 days. 20

1. As the Court's records will reflect, this action was filed on September 6, 2011, to 21 compel Defendants to comply with their Collective Bargaining Agreement. 22

2. As the Court's records will further reflect, service of process on Defendants was 23 effectuated as follows: Fremont Paving Company and Ellen Marie Lebon were served on 24 September 12, 2011; Donald Allen Lebon was served on September 14, 2011; Joseph James 25 Lebon was served on October 7, 2011. Proofs of Service of Summons were filed with the Court 26 on October 4, 2011 (Dkt. #9) and October 7, 2011 (Dkt. #11). 27

3. Robert E. Carey, Jr., of Carey & Carey Law Corporation advised Plaintiffs' counsel 28 that he was retained to represent the Defendants in this matter, and requested an extension of time to answer or otherwise respond to the Complaint, to November 18, 2011. Plaintiffs' counsel 2 granted that request, and executed a Stipulation to that effect on October 12, 2011. Since then, 3 Plaintiffs' counsel granted Defendants an additional extension of time to answer or otherwise 4 respond to the Complaint. Defendant's counsel recently prepared and advised that he intended to 5 file a Motion to Dismiss relative to some of the individual defendants. The parties are attempting 6 to work out a resolution to the issues posed in the Motion to dismiss, which may include dismissal 7 of one or more of the individual defendants. Information as to respective liability is being 8 exchanged. 9

10 individual responsible for payment of Trust Fund contributions had been systematically converting 11 the contributions for her own use. Due to this unusual fact pattern, discovery is being done 12 informally and cooperatively. 13

14 indictment request to the Grand Jury. Plaintiffs counsel has worked with this particular agent, to 15 assist her in compiling the information required to prosecute the responsible individual. Although 16 recovery of funds is unlikely, prosecution will likely commence shortly. 17

18 institutions that cashed the checks presented by the embezzler, on the theory that the checks 19 should have never been honored as written. Defendants are hopeful that a resolution may be 20 reached which will allow funds to be paid to Plaintiffs herein. 21

22 these entities. The individual who embezzled from Fremont Paving (the granddaughter of the 23 owners no less) also failed to pay any required payroll or other taxes. The defendants have worked 24 diligently with the EDD and IRS and have worked out some, but not all of the issues. Defendants 25 do not want to enter into a payment plan with Plaintiffs herein without knowing what their 26 payment plan will be with the other entities as they do not know what their cash flow will allow. 27

There is an additional $400,000 owed to other entities, and more than that amount owed to 28 4. Defendants were unaware of the extent of their debt to the Trust Funds as the

5. The Secret Service has been investigating this matter, and is preparing to present an

6. In addition, Defendants have filed a lawsuit against the various financial

7. Defendants have met with both the EDD and the IRS relative to the debt owed to Plaintiffs herein.

8. There are no issues that need to be addressed at the currently scheduled Case Management Conference. In the interest of conserving costs as well as the Court's time and 3 resources, Plaintiffs respectfully request that the Case Management Conference, currently 4 scheduled be continued for 60-90 days. Pursuant to the Defendants' counsel's representation, the 5

IRS will have an agreement for Defendants within that time frame. The parties have been 6 discussing other options (such as stipulating to a lump sum judgment) which may resolve the 7 matter earlier. 8

IT IS SO ORDERED.

Based on the foregoing, and GOOD CAUSE APPEARING, the currently set Case Management Conference is hereby continued to All related June 29, 2012 at 1:30 p.m. deadlines are extended accordingly. 16 17

20120405

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