Free Joint Case Management Statement - District Court of California - California

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 1 of 10

1 PHILIP M. MILLER (SBN 87877) KRISTEN McCULLOCH (SBN 177558) 2 SALTZMAN & JOHNSON LAW CORPORATION 44 Montgomery Street, Suite 2110 3 San Francisco, California 94104 (415) 882-7900 4 (415) 882-9287 ­ Facsimile [email protected] 5 [email protected] 6 Attorneys for Plaintiffs 7 AREVA D. MARTIN (SBN 131397) ROSA KWONG (SBN 129811) 8 MARTIN & MARTIN, LLP 35030 Wilshire Boulevard, Suite 1650 9 Los Angeles, CA 90010 (213) 388-4747 10 (213) 385-5666 ­ Facsimile [email protected] 11 [email protected] 12 Attorneys for Defendant 13 14 15 16 CALIFORNIA SERVICE EMPLOYEES HEALTH & WELFARE TRUST FUND, 17 MIKE GARCIA, Trustee, CHARLES GILCHRIST, Trustee, RAYMOND C. NANN, 18 Trustee, LARRY T. SMITH, Trustee, 19 20 vs. 21 A & B MAINTENANCE, INC., a California corporation, 22 Defendant. 23 24 Plaintiffs, the California Service Employees Health & Welfare Trust Fund and its Trustees, 25 jointly with Defendant, A & B Maintenance, Inc., in the above-entitled action submit this Joint 26 Case Management Statement and Proposed Order and request the Court to adopt it as its Case 27 Management Order in this case. Pursuant to Civil L.R. 16-10(d), the parties to the above-entitled 28 1
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA (SAN FRANCISCO DIVISION) Case No.: C 07-04945 TEH JOINT CASE MANAGEMENT CONFERENCE STATEMENT Date: May 12, 2008 Time: 1:30 p.m. Courtroom: 12, 19th Floor Hon. Thelton E. Henderson

Plaintiffs,

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 2 of 10

1 action certify that they met and conferred at least 10 days prior to the subsequent case 2 management conference scheduled in this case and jointly submit this Supplemental Case 3 Management Statement and Proposed Order and request the Court to adopt it as a Supplemental 4 Case Management Order in this case. 5 JURISDICTION AND SERVICE 6 1. JURISDICTION: Plaintiffs assert and the Court has that jurisdiction over the

7 current claims asserted by the Plaintiffs under ERISA Section 502, 29 U.S.C. § 1132, in that the 8 Plaintiffs seek to enforce the provisions of ERISA and the terms of their plans, seek to enjoin the 9 acts and practices that allegedly violate ERISA, seek equitable relief to redress such violations, 10 and seek all other appropriate relief under ERISA. Plaintiffs also assert that jurisdiction exists by 11 virtue of Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, in that 12 the Plaintiffs seek to enforce the terms and conditions of Bargaining Agreement between the 13 employer and a labor organization. 14 2. SERVICE: Plaintiffs state that Defendant A & B Maintenance, Inc. was served

15 with the original Complaint filed in this action on October 1, 2007. 16 3. SERVICE: Defendant maintains it was never properly served with the Complaint

17 and did not become fully aware of the herein action until January of 2008. 18 VENUE/APPROPRIATE FORUM 19 4. Plaintiffs assert that the Northern District of the USDC is the correct venue because

20 Plaintiffs either reside in or have their principal place of business in that District and the 21 Bargaining Agreement was consummated in that District. 22 5. Defendant maintains that the proper venue is the Central District because, among

23 other things, Defendant's place of business, all of the witnesses and documentary evidence are in 24 the Central District, Los Angeles Division. Further, Defendant executed the Bargaining 25 Agreement and the alleged contractual breach occurred within the Central District. Defendant 26 intends to move this court for an order transferring this action to the Central District. 28 U.S.C.A. 27 1404. 28 2
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 3 of 10

1 FACTUAL DESCRIPTION OF THE CASE 2 6. Plaintiffs are the California Service Employees Health & Welfare Trust Fund ("the

3 Fund"), a multiemployer joint labor-management welfare fund established pursuant to Section 4 302(c) of the Labor Management Relations Act (29 U.S.C. Section 186(c)), and its Trustees 5 (collectively "Plaintiffs"). Defendant A & B Maintenance, Inc. ("Defendant") is an employer 6 obligated to contribute to the Fund on behalf of its employees pursuant to successive Collective 7 Bargaining Agreements ("Bargaining Agreement"). Plaintiffs' primary allegation asserts that 8 based on the findings of an independent audit, covering the period October 1, 2005 through 9 December 31, 2007, Defendant breached the Bargaining Agreement by underpaying contributions 10 required due for hours worked by its employees who plaintiffs allege were covered by the 11 Bargaining Agreement during this period. In addition to the claims based on the audit report, the 12 Trust further alleges that during the period October 2005 through December 2007, Defendant 13 breached the Bargaining Agreement by failing to make timely payments of contributions due and 14 owing the Trust. 15 7. Defendant denies the allegations that it breached the Bargaining Agreement and

16 disputes the audit findings and did file a counterclaim against Plaintiffs for fraud and for an offset 17 on the grounds that Plaintiffs reneged on their promise to discount the contributions in exchange 18 for Defendant's execution of the Bargaining Agreement in May 2006. Defendant has withdrawn 19 the counterclaim without prejudice, though the facts underlying the counterclaim remain in dispute 20 and Defendant reserves the right to restore the counterclaim by way of Motion or Stipulation in 21 the course of this litigation. 22 23 8. The principal factual issues which the parties dispute are: a. Whether the Bargaining Agreement required Defendant to pay the Trust for

24 certain of its employees based on the "original hire date" of the employees who had worked for 25 any displaced employer, including Pacific Maintenance, immediately prior to becoming an 26 employee of A & B Maintenance, Inc. during the period of October 1, 2005 through December 31, 27 2007; 28 3
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 4 of 10

1

b.

Whether certain employees who performed work described by the

2 Bargaining Agreement worked at least 180 days entitling them health benefits; 3 c. Whether certain employees who performed work described by the

4 Bargaining Agreement performed at least 110 hours of work during certain months in dispute 5 entitling them health benefits; 6 d. Whether particular employees were non-union supervisors not entitled to

7 any contributions to the Trust. 8 e. What was the correct rate at which Defendant was obligated to pay the

9 Trust for its employees are covered by the Bargaining Agreement. 10 11 12 13 14 9. 10. 11. 12. 13. The only known legal issue is whether venue is proper. There are no other known factual or legal issues that remain unresolved. All parties have been served. None of the parties intend to name or join any additional parties. The parties do not consent to assignment of this case to a United States Magistrate

15 Judge for trial. 16 PRIOR AND PENDING MOTIONS 17 14. On December 13, 2007, Plaintiffs filed a Motion for Default Judgment and Entry of

18 Default, which was granted by the Court on December 21, 2007. On January 24, 2008, the Parties 19 Stipulated to Set Aside Entry of the Default and Default Judgment, which was entered as ordered 20 on January 25, 2008. 21 15. No other motions have been filed or are pending, though Defendant intends to

22 move under 28 U.S.C.A. §1404 to transfer this action to the Central District, Los Angeles 23 Division. 24 AMENDMENT OF PLEADINGS 25 16. Plaintiffs do not anticipate that the pleading will need to be amended to add or

26 dismiss parties, claims, or defenses. 27 17. The parties propose that the due date for amending the pleadings as set forth in the

28 proposed schedule below. 4
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 5 of 10

1 EVIDENCE PRESERVATION 2 18. Plaintiffs have confirmed that the policy of the third-party administrator of the

3 Trust, custodian of its records, is to send to storage, but not destroy, any documents pertaining to 4 the Plaintiff Trust. Defendant confirms that it has taken steps to preserve evidence relevant to the 5 issues reasonably evident in this action. 6 DISCLOSURES 7 8 9 10 11 12 20. b. 19. The parties certify that they have made the following disclosures: a. Plaintiffs will make their required initial disclosures on or before June 3, 2008. Defendant will make their required initial disclosures on or before June 3, 2008. Plaintiffs' initial disclosures identified twenty-two (22) individual witnesses or

13 categories of witnesses, identified twenty-four (24) categories of documentary evidence; provided 14 a computation of damages as of the beginning of the case and disclosed that Plaintiffs did not 15 maintain any insurance that would cover the claims asserted in the Complaint. 16 19. Defendant has not yet made its Initial Disclosures, but will do so by June 3, 2008.

17 DISCOVERY 18 19 20 21 22 23 24 d. 21. 22. No formal written discovery has yet been issued in this case. The parties agree to the following discovery plan: a. b. c. Document Production: no limit on the document requests. Requests for Admissions: no limit on the requests for admissions. Interrogatories and depositions shall be limited as provided by the Federal Rules of Civil Procedure. Cut-off for fact discovery: see schedule below.

25 RELATED CASES 26 27 /// 28 /// 5
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

23.

There are no known related cases.

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 6 of 10

1 RELIEF 2 3 4 5 6 7 8 9 10 11 12 13 14 25. 24. Plaintiffs seek the following relief: a. Monetary Damages for unpaid contributions under ERISA Section 502(g)(2)(A), 29 U.S.C. § 1132(g)(2)(A); b. Interest on unpaid contributions under ERISA Section 502(g)(2)(B), 29 U.S.C. § 1132(g)(2)(B); c. Liquidated damages on unpaid contributions pursuant to ERISA Section 502(g)(2)(C), 29 U.S.C. § 1132(g)(2)(C); d. Reasonable attorneys' fees and other costs (including accountants' fees) under ERISA Section 502(g)(2), 29 U.S.C. § 1132(g)(2) to be determined. e. A preliminary and permanent injunction under ERISA Sections 502(a)(3), 29 U.S.C. § 1132(a)(3), and 502(g)(2)(E), 29 U.S.C. § 1132(g)(2)(E), against further violations and from disposing of any assets. Defendant seeks affirmative relief pursuant to its affirmative defenses

15 SETTLEMENT ALTERNATIVE DISPUTE RESOLUTION 16 26. The parties jointly believe that the issue in this case may be able to be resolved

17 through either informal or formal settlement. 18 27. The parties have agreed to non-binding mediation. The parties have filed a

19 Stipulation and Proposed Order Selecting non-binding mediation as the ADR process in this case. 20 28. The parties intend to file a Notice of Need for ADR Phone Conference.

21 CONSENT TO MAGISTRATE JUDGE 22 29. Plaintiffs previously declined to consent to assignment of this case to a United

23 States Magistrate Judge for trial and disposition. 24 NARROWING OF ISSUES 25 30. The parties are working to narrow the issues.

26 EXPEDITED SCHEDULE 27 28 6
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

31.

This case is not appropriate for an expedited schedule.

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 7 of 10

1 SCHEDULE 2 3 4 (2) 5 (3) 6 (4) 7 8 9 10 11 12 (9) 13 (10) 14 (11) 15 16 17 18 19 20 TRIAL 21 33. Plaintiffs have not demanded jury trial; Defendant demanded jury trial in (12) (13) (14) (15) Disclosure of identities and reports of expert witnesses: Completion of Fact Discovery: Completion of Expert Discovery: Pretrial Conference Trial to begin on: 1/30/09 3/09/09 3/23/09 4/17/09 5/18/09 Any amendment of the pleadings to be filed by: 1/09/09 All dispositive motions to be heard on or before: 12/01/08 (5) (6) (7) (8) Motion to Transfer to Central District to be heard by ADR session to be held by: Dispositive motion to be filed by: Opposition to any dispositive motion to be filed by: Reply to any opposition to any dispositive motion to be filed by: 7/07/08 9/05/08 10/24/08 11/07/08 11/18/08 Reply to Opposition in Motion to Transfer by 6/23/08 Opposition to Motion to Transfer filed by 6/16/08 32. The parties propose the following case scheduling order: (1) Defendant's Motion for Transfer to Central District to be filed by 6/01/08

22 conjunction with the answer and counterclaim, filed February 20, 2008. 23 24 25 /// 26 /// 27 /// 28 /// 7
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

34. 35.

Neither party made a timely application for a jury trial. The parties expect that the trial will last for the following number of days: 5 to 7.

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 8 of 10

1 DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS 2 36. As required by Civil Local Rule 3-16, Plaintiffs filed a "Certification of Interested

3 Entities or Persons" on January 29, 2008, which disclosed "that union employees of Defendant A 4 & B Maintenance, Inc., too numerous to list, who were employed during October 1, 2005 through 5 December 31, 2007 could have a financial interest in the subject matter in controversy." 6 Respectfully submitted, 7 Date: May 5, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

SALTZMAN & JOHNSON LAW CORPORATION Philip M. Miller Kristen McCulloch

By:

/S/ Kristen McCulloch, Attorneys for Plaintiffs

Dated: May 5, 2008

Martin & Martin, LLP Areva D. Martin

By:

/S/ Areva D. Martin, Attorneys for Defendant

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 9 of 10

1 2

CASE MANAGEMENT ORDER The Case Management Statement and Proposed Order is hereby adopted by the

3 Court as the Case Management Order for the case and the parties are ordered to comply with this 4 Order. In addition the Court orders: 5 6 (2) 7 (3) 8 (4) 9 (5) 10 (6) 11 (7) 12 (8) 13 14 15 16 17 18 19 20 (9) (10) (11) (12) (13) (14) (15) Reply to any opposition to any dispositive motion to be filed by: All dispositive motions to be heard on or before: Any amendment of the pleadings to be filed by: Disclosure of identities and reports of expert witnesses: Completion of Fact Discovery: Completion of Expert Discovery: Pretrial Conference Trial to begin on: 11/18/08 __/__/__ 12/01/08 __/__/__ 1/09/09 __/__/__ 1/30/09 __/__/__ 3/09/09 __/__/__ 3/23/08 __/__/__ 4/17/09 __/__/__ 5/18/09 __/__/__ Opposition to any dispositive motion to be filed by: 11/07/08 __/__/__ Dispositive motion to be filed by: 10/24/08 __/__/__ ADR session to be held by: 9/05/08 __/__/__ Motion to Transfer to Central District to be heard by 7/07/08 __/__/__ Reply to Opposition in Motion to Transfer by 6/23/08 __/__/__ Opposition to Motion to Transfer filed by 6/16/08 __/__/__ (1) Defendant's Motion for Transfer to Central District to be filed by 6/01/08 __/__/__

21 It is so ordered: 22 Dated: 23 24 25 26 27 28 9
P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc

The Honorable THELTON E. HENDERSON UNITED STATES DISTRICT JUDGE

JOINT CASE MANAGEMENT CONFERENCE STATEMENT Case No.: C 07-04945 TEH

Case 3:07-cv-04945-TEH

Document 29

Filed 05/05/2008

Page 10 of 10

1 2

PROOF OF SERVICE I am employed in the County of San Francisco, State of California. I am over the age of

3 eighteen and not a party to this action. My business address is 44 Montgomery Street, Suite 2110, 4 San Francisco, California 94104. 5 On May 5, 2008, I served the following document on the parties to this action, addressed

6 as follows, in the manner described below: 7 8 9 XX 10 11 Addressed to: 12 13 14 15 I declare under penalty of perjury that the foregoing is true and correct and that this 16 declaration was executed on this 5th day of May, 2008 at San Francisco, California. 17 18 /S/ 19 20 21 22 23 24 25 26 27 28 Julie Jellen Areva D. Martin Rosa Miu-Ching Kwong Martin & Martin, LLP 3530 Wilshire Blvd. Suite 1650 Los Angeles, CA 90010-2313 MAIL, being familiar with the practice of this office for the collection and the processing of correspondence for mailing with the United States Postal Service, and deposited in the United States Mail copies of the same to the business addresses set forth below, in a sealed envelope fully prepared. JOINT CASE MANAGEMENT CONFERENCE STATEMENT

P:\CLIENTS\CSEHT\Cases\A&B Maintenance\PLEADINGS\Jnt CMC Stmt.doc.doc

Case No.: C 07-04945 TEH