Opinion
Case No.: C 10-04460 PJH.
October 11, 2011
RICHARD C. JOHNSON (SBN 40881), SHAAMINI A. BABU (SBN 230704), SALTZMAN JOHNSON LAW CORPORATION, San Francisco, CA, Attorneys for Plaintiffs.
FORD HARRISON LLP, Steven L. Brenneman, Sandra J. McMullan, Attorneys for Defendants Case Dealer Holding, Company LLC and CNH America LLC, Los Angeles, CA.
TRAVIS PON, Monte Travis, Counsel for Defendants Dean McLain, Robert Rubin, and Rubin Family Irrevocable Trust.
STIPULATION REGARDING MEDIATION AND OTHER DEADLINES; AND [PROPOSED] ORDER THEREON
Complaint Filed: 10/1/10
The parties hereby stipulate as follows:
Overview
1. This action involves withdrawal liability allegedly owed to Plaintiff Operating Engineers Pension Trust Fund under ERISA as amended by the Multiemployer Pension Plan Amendments Act of 1980 ( 29 U.S.C §§ 1001- 1461 (1982).
Defendants Case Dealer and CNH America
2. Defendants CDHC and CNH filed their Answer to the SAC on July 21, 2011.
Defendant APM I
3. Defendant Arizona Pacific Materials I, LLC ("APM I") appeared in this action (Docket No. 39) through legal counsel which filed a motion for leave to withdraw as counsel on July 5, 2011 (Docket 99). Said motion was granted on August 2, 2011 (Docket 106). Thereafter, default was entered against APM I on September 14, 2011 (Docket No. 114). Plaintiffs were required to file a motion for default judgment against APM I within 30 days from entry of default in accordance with Civil Minutes dated September 1, 2011 (Docket No. 111). In light of this Stipulation, Plaintiffs will file a motion for default judgment by December 31, 2011, so that Plaintiffs have the opportunity to rely on any information and documents that Rubin, Rubin Trust, and McLain may produce by December 15, 2011.
Defendant APM II
4. Defendant Arizona Pacific Materials II, LLC ("APM II") has been dismissed without prejudice.
Defendant Rubin
5. Defendant Robert Rubin ("Rubin") and Rubin Family Irrevocable Trust ("Rubin Trust") filed their Answer the SAC on July 22, 2011. Plaintiffs allege that Defendants Rubin and Rubin Trust are liable under Cal. Corp. Code § 2011(a), 8 Del. C. 1953, § 242, and Or. Rev. Stat. § 60.645. Defendants Rubin and Rubin Trust contend that they are entitled to a dismissal since they did not receive any distributions at the time of dissolution of WPE Defendants, and that they are not subject to the Court's personal jurisdiction in this matter. Counsel for Defendants Rubin and Rubin Trust has produced certain documents relevant to this action voluntarily without the need for Plaintiffs to propound discovery. Said Defendants anticipate establishing that they did not receive any distributions upon dissolution by December 15, 2011. If Plaintiffs determine that Defendants have sufficiently established that they did not receive any distributions upon dissolution Plaintiffs will dismiss Defendants Rubin and Rubin Trust. If Defendants Rubin and Rubin Trust fail to establish that they did not receive distributions upon dissolution then said Defendants will participate in mediation.
Defendant McLain
6. Defendant Dean McLain ("Defendant McLain") filed his Answer to the SAC on July 22, 2011. Plaintiffs allege that Defendant McLain is liable under Cal. Corp. Code § 2011(a), 8 Del. C. 1953, § 242, and Or. Rev. Stat. § 60.645. Defendant McLain contends that he is entitled to a dismissal since he did not receive any distributions at the time of dissolution of WPE Defendants, and that he is not subject to the Court's personal jurisdiction in this matter. Counsel for Defendant McLain has produced certain documents relevant to this action voluntarily without the need for Plaintiffs to propound discovery. Defendant McLain anticipates establishing that he did not receive any distributions upon dissolution by December 15, 2011. If Plaintiffs determine that Defendant has sufficiently established that he did not receive any distributions upon dissolution Plaintiffs will dismiss Defendant McLain. If Defendant McLain fails to establish that he did not receive distributions upon dissolution then he will participate in mediation.
WPE Defendants
7. Western Power Equipment Corp., a Delaware corporation, and Western Power Equipment Corp., an Oregon corporation (collectively "WPE Defendants") have not yet appeared in this action. Plaintiffs are informed and believe that the entities are dissolved. Default was entered against WPE Defendants on September 14, 2011 (Docket No. 114). Plaintiffs were required to file a motion for default judgment against the WPE Defendants within 30 days from entry of default in accordance with Civil Minutes dated September 1, 2011 (Docket No. 111). In light of this Stipulation, Plaintiffs will file a motion for default judgment by December 31, 2011, so that Plaintiffs have the opportunity to rely on any information and documents that Rubin, Rubin Trust, and McLain may produce by December 15, 2011.
ADR
8. Pursuant to Stipulation and Order Selecting ADR Process the parties are required to complete mediation by November 15, 2011 (Docket No. 108). Charles Loughran was appointed as the mediator in this action on August 30, 2011 (Docket No. 110). Counsel for the parties participated in a phone conference with Mr. Loughran on September 20, 2011, and agreed to hold the mediation on January 10, 2012, January 11, 2012, or January 12, 2012, for the reasons specified in paragraphs 5 and 6, above.
Pre-Trial Deadlines
Magistrate Judge
ORDER
Based on the foregoing Stipulation, the parties shall participate in mediation prior to February 1, 2012. All deadlines as specified in the Pre-Trial Order dated September 6, 2011 (Docket No. 112) remain unchanged.
IT IS SO ORDERED.