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Northern California Glaziers, Architectural M and Glass Workers Pension Trust Fund v. U.S. Glass, Inc.

United States District Court, Ninth Circuit

November 26, 2013

NORTHERN CALIFORNIA GLAZIERS, ARCHITECTURAL M AND GLASS WORKERS PENSION TRUST FUND, et al. Plaintiffs,
v.
U.S. GLASS, INC., a California corporation, Defendant.

Muriel B. Kaplan, Esq., (SBN 124607) Shivani Nanda, Esq., (SBN 253891) SALTZMAN & JOHNSON LAW CORPORATION, San Francisco, CA. Attorneys for Plaintiffs.

U.S. GLASS, INC. Mark Robert Dutrow, CEO/President

MARK ROBERT DUTROW, Individually as Personal Guarantor

SALTZMAN AND JOHNSON LAW CORPORATION Shivani Nanda, Attorneys for Plaintiffs

NOTICE AND ACKNOWLEDGMENT; and [PROPOSED] JUDGMENT PURSUANT TO STIPULATION

CLAUDIA WILKER, District Judge.

IT IS HEREBY STIPULATED and AGREED (the "Stipulation") by and between the parties hereto, that Judgment shall be entered in the within action in favor of the Plaintiffs NORTHERN CALIFORNIA GLAZIERS TRUST FUNDS, et al. (collectively "Plaintiffs" or "Trust Funds") and against Defendant U.S. GLASS, INC., a California corporation ("Defendant"), and/or alter egos and/or successor entities, as follows:

1. Defendant entered into a valid Collective Bargaining Agreement with the District Council 16 of the International Union of Painters and Allied Trades and the Northern California Glass Management Association (hereinafter "Bargaining Agreement"). This Bargaining Agreement has continued in full force and effect to the present time.

2. MARK ROBERT DUTROW, RMO/CEO/President of U.S. GLASS, INC., acknowledges receipt of the following documents in this action on behalf of U.S. Glass: Summons; Complaint; Dispute Resolution Procedures in the Northern District of California; Order Setting Initial Case Management Conference and ADR Deadlines; Civil Standing Order for Magistrate Judge Kandis A. Westmore; Instructions for Completion of ADR Forms Regarding Selection of an ADR Process; Stipulation and [Proposed Order] Selecting ADR Process; Notice of Need for ADR Phone Conference; ADR Certification by Parties and Counsel; Notice of Assignment of Case to a United State Magistrate Judge for Trial; Consent to Proceed Before a United States Magistrate Judge (blank form); Declination to Proceed Before a Magistrate Judge and Request for Reassignment to a United States District Judge (blank form); ECF Registration Information Handout; Welcome to the Oakland Divisional Office of the United States District Court; Certification of Interested Entities or Persons Pursuant to Civil Local Rule 3-16; Plaintiff's Declination to Proceed Before a Magistrate Judge and Request for Reassignment to a United States District Judge (Dkt. #5); Clerk's Notice of Impending Reassignment to U.S. District Judge (Dkt. #6); Order Reassigning Case to the Honorable Judge Claudia Wilken (Dkt. #7); Case Management Scheduling Order for Reassigned Civil Case (Dkt. #8); Standing Order for All Judges of the Northern District of California - Contents of Joint Case Management Statement (Dkt. #8-1).

3. MARK ROBERT DUTROW acknowledges that he is the RMO/CEO/President of U.S. Glass, Inc. and specifically consents to the Court's jurisdiction for all proceedings herein. Mr. Dutrow (hereinafter "Guarantor") also confirms that in consideration of the within payment plan he is personally guaranteeing the amounts due pursuant to the terms of this Stipulation and further acknowledges that all affiliates, related entities and successors in interest to U.S. Glass, Inc. and/or any subsequent entity wherein Mr. Dutrow is a principal shall also be bound by the terms of this Stipulation as Guarantors, and also consent to this Court's jurisdiction. Defendant and any additional entities in which MARK ROBERT DUTROW is an officer, owner or possesses any ownership interest, including all successors in interest, assignees, and affiliated entities (including, but not limited to parent or other controlling companies), and any companies with which U.S. Glass, Inc. joins or merges, if any, shall also be bound by the terms of this Stipulation. Defendant/Guarantor and all such entities specifically consent to the Court's jurisdiction, which shall be specified in writing at the time of any assignment, affiliation or purchase of Defendant/Guarantor, along with the obligations to the terms herein.

4. Defendant has become indebted to the Trust Funds as follows:

Work Month Unpaid 20% Liquid. 5% Interest Total Contributions Damages on (thru 10/9/13) reported on unpaid contributions contributions May 2013 $75, 551.63 $15, 885.51 $1, 035.00 $92, 472.14 (reported $79, 427.57) June 2013 $53, 942.35 $11, 795.87 $509.91 $66, 248.13 (reported $58, 979.35) July 2013 $48, 174.02 $9, 718.88 $250.80 $58, 143.70 (reported $48, 594.39) August 2013 $53, 847.79 $11, 923.03 $59.04 $65, 829.86 (reported $59, 615.17) Subtotals: $231, 515.79 $49, 323.29 $1, 854.75 Unpaid Contributions, Interest thereon, Liquidated Damages $282, 693.83 (5/13-8/13, breakdown above) 10% Liquidated Damages on prior late-paid Contributions $6, 444.38 (10/11-11/11; 7/12-9/12) Attorneys' Fees (through 10/8/13) $4, 356.00 Complaint Filing Fee $400.00 Grand Total: $293, 894.21

5. Defendant shall conditionally pay the amount of $238, 126.54, representing the balance of the above amounts, less liquidated damages in the amount of $55, 767.67. This conditional waiver is expressly conditioned upon Trustee approval following timely compliance with all of the terms of this Stipulation, as follows:

(a) Beginning on November 1, 2013, and the first day of each month thereafter for a period of eighteen (18) months through and including April 1, 2015, Defendant/Guarantor shall pay to Plaintiffs the amount of $13, 760.00 per month;

(b) Payments may be made by joint check, to be endorsed to Plaintiffs prior to submission. Any and all joint checks received for amounts owed under the Stipulation will be applied to reduce the balance due. Defendant/Guarantor shall have the right to increase the monthly payments at any time and there is no penalty for prepayment;

(c) Payments shall be applied first to unpaid interest and then to unpaid principal. The unpaid principal balance shall bear interest from October 10, 2013, at the rate of 5% per annum in accordance with the ...


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