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Pension Trust Fund For Operating Engineers; F.G. Crosthwaite and v. Tractor Equipment Sales

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


November 8, 2012

PENSION TRUST FUND FOR OPERATING ENGINEERS; F.G. CROSTHWAITE AND
RUSSELL E. BURNS, AS TRUSTEES,
PLAINTIFFS,
v.
TRACTOR EQUIPMENT SALES, INC., A CALIFORNIA CORPORATION,
J.L. WHITE INTERNATIONAL, INC., A CALIFORNIA COURTROOM 11, 19TH FLOOR CORPORATION,
TES ASSET MANAGEMENT AND CONSULTING GROUP, A CALIFORNIA JOINT VENTURE, AND DOES 1-20
DEFENDANTS.

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

REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE AND ALL RELATED DEADLINES; [PROPOSED] ORDER THEREON 14

Date: December 7, 2012 Time: 1:30 p.m. Judge: The Honorable Jeffrey S. White

Plaintiffs herein respectfully request that the Case Management Conference currently on calendar for December 7, 2012, 1:30 p.m., and all related deadlines, including ADR deadlines, be 22 continued for 90 days, to allow Plaintiffs' counsel to conduct a Federal Rules of Bankruptcy Procedure §2004 Exam of principal Steven Van Tuyl ordered to take place on December 3, 2012. 24

One of the purposes of the 2004 exam is to determine whether Plaintiffs will file a Motion for 25 Default as to defendant TES Asset Management and Consulting Group, a California joint venture 26 (the nature of the joint venture and its relationship to the debtor is currently unknown) and to 27 evaluate whether or not plaintiffs will be amending the complaint to name new defendants whose 28 individual liability will be explored during the 2004 exam.

1. Good Cause exists for the request: This action arises under the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension 4 Plan Amendments Act of 1980 (29 U.S.C §§1001-1461 (1982)), to recover withdrawal liability 5 amounts owed by Tractor Equipment Sales, Inc. and its controlled group members to plaintiffs 6 Pension Trust Fund for Operating Engineers, F.G. Crosthwaite, and Russell E. Burns 7 ("Plaintiffs").

corporation, J.L. White International, Inc., a California corporation, and TES Asset Management 11 and Consulting Group, a California joint venture, by personal service on Jim White, authorized 12 agent and/or officer for each defendant on April 9, 2012. A proof of service was filed on April 19, 13 2012. (Dkt. # 10) 14

2. On March 1, 2012, plaintiffs filed a Complaint in this matter.

3. Service was effectuated on defendants Tractor Equipment Sales, Inc., a California

4. Defendant Tractor Equipment Sales, a California corporation, filed a Chapter 7 Bankruptcy in the U.S. Bankruptcy Court, Northern District of California, on May 14, 2012. On 16 June 7, 2012, plaintiffs filed a Notice of Automatic Stay Under 11 U.S.C. Section 362 as to 17 defendant Tractor Equipment Sales, Inc. only. (Dkt. #15) Further, plaintiffs' counsel made an 18 appearance at the Meeting of Creditors wherein plaintiffs' counsel conferred with counsel for 19 defendant Tractor Equipment Sales, a California corporation and the Bankruptcy Trustee. 20

Plaintiffs' counsel will be conducting a Federal Rules of Bankruptcy Procedure §2004 Exam of 21 principal Steven Van Tuyl on December 3, 2012 to determine whether or not plaintiffs will be 22 adding defendants to this instant action and to determine whether plaintiffs may proceed by default 23 against defendant TES Asset Management and Consulting Group. 24

25 scheduled on June 22, 2012, and all of its associated deadlines, be continued for 60 days in 26 anticipation of plaintiffs filing a Request for Entry of Default against Defendant and/or amending 27 the complaint to add new defendants. (Dkt. 12) 28

6. On May 30, 2012, the Motion to Continue Case Management was granted by the Court and the Case Management Conference was continued to August 24, 2012 at 1:30 pm. (Dkt. 3 #13)

7. On June 19, 2012, plaintiffs filed a Notice of Voluntary Dismissal of Defendant J.L. White International, Inc. only. (Dkt. 16) 6

8. On July 25, 2012, plaintiffs filed a Request for Default of TES Asset Management 7 and Consulting Group, a California joint venture, only. (Dkt. # 17) scheduled on August 24, 2012, and all of its associated deadlines, be continued for 90 days in 10 anticipation of plaintiffs filing a Motion for Default as to defendant TES Asset Management and Consulting Group, a California joint venture. (Dkt. # 18) 12

9. On July 30, 2012, plaintiffs requested that the Case Management Conference 10. On August 1, 2012, the Motion to Continue Case Management was granted by the Court and the Case Management Conference was continued to December 7, 2012 at 1:30 pm. 14 (Dkt. #22). 15

16 enable Plaintiffs (Creditors in the bankruptcy action) to evaluate whether it may proceed against 17 TES Asset Management and Consulting Group and to determine whether there may be additional 18 defendants with liability in this matter.

20 granting document production and a 2004 exam to be held on December 3, 2012 (the earliest 21 available date for debtor's bankruptcy counsel). 22

11. Debtors (Defendants to this action) have stalled in providing documents that would 12. Plaintiffs have now sought and received an Order from the bankruptcy court 13. Since no defendants have appeared in the action, there is no need to hold a Case Management Conference or elect an ADR procedure. 24 14. Therefore, plaintiffs respectfully request that the Case Management Conference 25 currently scheduled for December 7, 2012, and all of its associated deadlines, be continued for 90 26 days in anticipation of Plaintiffs conducting discovery in the bankruptcy proceeding and thereafter 27 analyzing the information received in order to determine whether it may proceed with a Motion 28 for Default Judgment as to TES Asset Management and Consulting Group and whether it has 2 grounds for amending its complaint to add additional defendants. 3

I declare under penalty of perjury that I am the attorney for the plaintiffs in the above entitled action, and that the foregoing is true of my own knowledge. Executed this 7th day of November, 2012, at San Francisco, California.

SALTZMAN & JOHNSON LAW CORPORATION By: ____________/S/____ _______________ 8 Julie A. Ostil Attorneys for Plaintiffs

ORDER

IT IS SO ORDERED. 13

Based on the foregoing, and GOOD CAUSE APPEARING, the currently set Case Management Conference is hereby continued to Febraury 22, 2013 at 1:30 p.m. All related deadlines, including ADR deadlines, are extended accordingly. 16

20121108

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