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Pension Trust Fund For Operating Engineers v. Tractor Equipment Sales

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


April 15, 2013

PENSION TRUST FUND FOR OPERATING ENGINEERS; F.G. CROSTHWAITE AND RUSSELL E. BURNS, AS TRUSTEES, PLAINTIFFS,
v.
TRACTOR EQUIPMENT SALES, INC., A CALIFORNIA CORPORATION, ET AL., AND DOES 1-20
DEFENDANTS.

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

REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE AND ALL RELATED DEADLINES; 13 [PROPOSED] ORDER THEREON 14 Date: May 6, 2013 Time: 1:30 p.m. 15 Courtroom 11, 19th Floor

Plaintiffs herein respectfully request that the Case Management Conference currently on 19 calendar for May 6, 2013, 1:30 p.m., and all related deadlines, including ADR deadlines, be 20 continued for 90 days. 21 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 23 Plan Amendments Act of 1980 (29 U.S.C §§1001-1461 (1982)), to recover withdrawal liability 24 amounts owed by Tractor Equipment Sales, Inc. and its controlled group members to plaintiffs 25 Pension Trust Fund for Operating Engineers, F.G. Crosthwaite, and Russell E. Burns 26 ("Plaintiffs"). 27 2. On March 1, 2012, plaintiffs filed a Complaint in this matter. (Dkt. #1)

2 corporation, J.L. White International, Inc., a California corporation, and TES Asset Management 3 and Consulting Group, a California joint venture, by personal service on Jim White, authorized 4 agent and/or officer for each defendant on April 9, 2012. A proof of service was filed on April 19, 5 2012. (Dkt. # 10) 6

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 8 June 7, 2012, plaintiffs filed a Notice of Automatic Stay Under 11 U.S.C. Section 362 as to 9 defendant Tractor Equipment Sales, Inc. only. (Dkt. #15) Further, plaintiffs' counsel made an 10 appearance at the Meeting of Creditors wherein plaintiffs' counsel conferred with counsel for 11 defendant Tractor Equipment Sales, a California corporation and the Bankruptcy Trustee. 12

5. On May 29, 2012, plaintiffs filed their first request that the Case Management Conference scheduled on June 22, 2012, and all of its associated deadlines, be continued for 60 14 days in anticipation of plaintiffs filing a Request for Entry of Default against Defendant TES Asset Management and Consulting Group, a California joint venture and/or amending the complaint to 16 add new defendants. (Dkt. 12)

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. 19 #13) 20

7. On June 19, 2012, plaintiffs filed a Notice of Voluntary Dismissal of Defendant J.L. White International, Inc. only. (Dkt. 16) 22

8. On July 25, 2012, plaintiffs filed a Request for Default of TES Asset Management and Consulting Group, a California joint venture, only. (Dkt. # 17)

9. On July 30, 2012, plaintiffs filed their second request that the Case Management

Conference scheduled on August 24, 2012, and all of its associated deadlines, be continued for 90 26 days in anticipation of plaintiffs filing a Motion for Default as to defendant TES Asset 27

Management and Consulting Group, a California joint venture. (Dkt. # 18) 28

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. 3 (Dkt. # 22) 4 granting a document production that occurred on December 11-12, 2013 (the earliest available 6 date for debtor's bankruptcy counsel). Defendants' produced voluminous financial documents. 7

11. On October 30, 2012, Plaintiffs received an Order from the bankruptcy court 12. On November 7, 2012, plaintiffs filed their third request that the Case Management Conference scheduled on December 7, 2012, and all of its associated deadlines, be continued for 9 90 days in anticipation of defendants producing financial documents in the bankruptcy proceeding. 10 (Dkt. # 24) 11 12 the Court and the Case Management Conference was continued to February 15, 2013 at 1:30 pm. 13 (Dkt. # 25)

13. On November 8, 2012, the Motion to Continue Case Management was granted by 14. On January 11, 2013, plaintiffs filed a Notice of Voluntary Dismissal of Defendant TES Asset Management & Consulting, only, based on information produced during the 16 bankruptcy proceeding. (Dkt. 26) 17 15. On January 30, 2013, plaintiffs filed their fourth request that the Case Management Conference scheduled on February 15, 2013, and all of its associated deadlines, be continued for 19 90 days since no defendants appeared in this action. (Dkt. # 27) 20 21 the Court and the Case Management Conference was continued to May 3, 2013 at 1:30 pm. (Dkt. 22 #28).

16. On January 30, 2013, the Motion to Continue Case Management was granted by

17. On March 28, 2013, pursuant to the Clerk's Notice, the Initial Case Management

Conference was rescheduled to Monday, May 6, 2013 at 1:30 p.m. due to budget reductions 25 caused by sequestration. 26

18. After conducting an extensive document review, Plaintiffs' counsel determined that

27 they will file a First Amended Complaint adding new parties Steven and Rena Van Tuyl, the owners of the defendant business and members of its controlled group. Plaintiffs' counsel notified 2 both bankruptcy counsel for Tractor Equipment Sales, Inc. and Steven Van Tuyl and Rena Van 3

Tuyl that the filing a First Amended Complaint in said instant action was imminent, naming both 4 the Van Tuyls individually. On March 22, 2013, counsel for Steven Van Tuyl and Rena Van Tuyl 5 sent correspondence to plaintiffs' counsel notifying plaintiffs' counsel of his representation and 6 requesting further information. Thereafter, on March 28, 2013, the Van Tuyls' counsel and 7

Plaintiffs' counsel conducted a telephone call wherein the Van Tuyls' counsel requested time to 8 conduct further investigate into Plaintiffs' claims and to confer with his clients in an attempt to 9 settle the case rather than engage in further litigation. 10

19. Since no defendants have appeared in the action, there is no need to hold a Case Management Conference or elect an ADR procedure. 12 20. Therefore, plaintiffs respectfully request that the Case Management Conference 13 currently scheduled for May 6, 2013, and all of its associated deadlines, be continued for 90 days 14 in anticipation of Plaintiffs' counsel conferring with counsel for the Van Tuyls, potential 15 settlement, and/or arranging for acceptance of service and filing of a responsive pleading by the 16 Van Tuyls. 17 18 entitled action, and that the foregoing is true of my own knowledge.

I declare under penalty of perjury that I am the attorney for the plaintiffs in the above

Executed this 11th day of April, 2013, at San Francisco, California. SALTZMAN & JOHNSON LAW CORPORATION By: ____________/S/____ _______________ Julie A. Richardson Attorneys for Plaintiffs

IT IS SO ORDERED.

Based on the foregoing, and GOOD CAUSE APPEARING, the currently set Case Management Conference is hereby continued to August 9, 2013 at 1:30 p.m. All related 5 deadlines, including ADR deadlines, are extended accordingly.

THE HONORABLE JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

20130415

© 1992-2013 VersusLaw Inc.



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