REQUEST FOR LEAVE TO FILE 

 STATEMENT OF RECENT DECISION 

P:\CLIENTS\OE3PP\Cases\Clarks Welding\MSJ\Request to File Stmt of Recent Decision 010510.doc Case No.: C09-0044 SC

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RICHARD C. JOHNSON (SBN 40881) 

SHAAMINI A. BABU (SBN 230704) 

SALTZMAN & JOHNSON LAW CORPORATION 

44 Montgomery Street, Suite 2110 

San Francisco, CA 94104 

(415) 882-7900 

(415) 882-9287 – Facsimile 

djohnson@sjlawcorp.com

sbabu@sjlawcorp.com 

Attorneys for Plaintiffs 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

OPERATING ENGINEERS’ PENSION 

TRUST FUND; GIL CROSTHWAITE and 

RUSS BURNS, as Trustees, 

 Plaintiffs, 

vs.

CLARKS WELDING AND MACHINE, et al., 

 Defendants. 

Case No.: C09-0044 SC 

PLAINTIFF’ REQUEST FOR LEAVE 

TO FILE STATEMENT OF RECENT 

DECISION IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR 

SUMMARY JUDGMENT; 

DECLARATION OF SHAAMINI A. 

BABU IN SUPPORT THEREOF; AND 

[PROPOSED] ORDER 

[Local Rule 7-3(d)] 

I, Shaamini A. Babu, declare that I have personal knowledge of the following facts and if called as 

a witness I could testify competently thereto: 

1. I am an attorney licensed to practice law in the State of California. I am an 

associate at Saltzman & Johnson Law Corporation, attorneys for Plaintiffs herein. 

2. On October 30, 2009, Plaintiffs filed their Motion for Summary Judgment in this 

action. Docket No. 50. 

3. Defendants filed their Opposition to Plaintiffs’ Motion for Summary Judgment on 

November 13, 2009. Docket No. 77. 

4. Thereafter, Plaintiffs’ filed their Reply Brief on November 19, 2009. Docket No. 

78.

5. On November 30, 2009, this Court vacated the hearing on the Motion for Summary 

Judgment and stated it would be deciding said motion on the papers. Docket No. 90. 

Case 3:09-cv-00044-SC Document 110 Filed 01/07/10 Page 1 of 4
REQUEST FOR LEAVE TO FILE 

 STATEMENT OF RECENT DECISION 

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6. Pursuant to the Court’s November 30th Order, Defendants’ filed a Sur-Reply on 

December 3, 2009. Docket No. 91. 

7. Neither the Defendants nor the Plaintiffs have cited the following relevant decision 

that was issued on November 3, 2009, in any papers relating to the Motion for Summary 

Judgment: Amalgamated Lithographers of America Lithographic Industry Pension Plan v. UNZ & 

So. Incorp., 2009 U.S. Dist. Lexis 108324 at *33-36 (S.D.N.Y. Nov. 3, 2009) (holding that if 

laches is claimed as a defenses to a claim for withdrawal liability, the issue must be arbitrated.) 

8. The Motion for Summary Judgment is still under submission with the Court. On 

December 11, 2009, the Court issued an order requesting supplement briefs relating to the impact 

of Tracy Mainguy’s continued deposition on said motion. Docket No. 105. Pursuant to said order, 

Defendants supplement brief is due on January 15, 2010, and Plaintiffs’ supplement brief is due on 

January 20, 2010. 

9. This Court’s Civil Local Rules 7-3(d) provides: 

Supplementary Material. Before the noticed hearing date, counsel may bring to 

the Court’s attention a relevant judicial opinion published after the date the 

opposition or reply was filed by serving and filing a Statement of Recent Decision, 

containing a citation to and providing a copy of the new opinion – without argument. 

Otherwise, once a reply is filed, no additional memoranda, papers or letters may be 

filed without prior Court approval.

10. The decision in UNZ & So. Incorp. was issued and filed ten (10) days before 

Defendants’ Opposition was filed and sixteen (16) days before Plaintiffs’ Reply Brief was filed. 

Although it was issued and filed on November 3, 2009, it was not available online at 

www.lexisnexis.com until November 21, 2009. The decision has not yet been published in an 

official or unofficial reporter. It was recently brought to the attention of Plaintiffs’ counsel while 

conducting research online at www.lexisnexis.com, the online research system utilized by 

Plaintiffs’ counsel. Thus, Plaintiffs seek leave of Court to file a Statement of Recent Decision in 

accordance with Local Rule 7-3(d). 

Case 3:09-cv-00044-SC Document 110 Filed 01/07/10 Page 2 of 4
REQUEST FOR LEAVE TO FILE 

 STATEMENT OF RECENT DECISION 

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11. Although the decision was not issued by a court in this jurisdiction, Plaintiffs’ 

counsel seek leave to file a Statement of Recent Decision in accordance with Local Rule 7-3(d) 

since the decision is relevant to the Motion for Summary Judgment and thus, may be persuasive to 

this Court when it considers and rules on the pending Motion for Summary Judgment. 

12. Based on the foregoing, Plaintiffs respectfully request the Court to grant leave for 

Plaintiffs to file a Statement of Recent Decision pursuant to Local Rule 7-3(d) within three (3) 

days from the date of the Court’s order. 

 I declare under penalty of perjury that the foregoing is true and correct and that this 

Declaration was executed upon this 5th day of January, 2010, at San Francisco, California. 

Dated: January 5, 2010 SALTZMAN & JOHNSON LAW CORPORATION 

 By: ___________/s/____________________

 Shaamini A. Babu 

 Attorneys for Plaintiffs 

IT IS SO ORDERED. 

This Court hereby grants leave under Local Rule 7-3(d) for Plaintiffs to file a Statement of 

Recent Decision within three (3) days from the date of this Order. 

Date: _________________________ __________________________________ 

 Honorable Samuel Conti 

January 7, 2010

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IT IS SO ORDERED

Judge Samuel Conti

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REQUEST FOR LEAVE TO FILE 

 STATEMENT OF RECENT DECISION 

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PROOF OF SERVICE

I, the undersigned, declare: 

 I am a citizen of the United States and am employed in the County of San Francisco, State 

of California. I am over the age of eighteen and not a party to this action. My business address is 

44 Montgomery Street, Suite 2110, San Francisco, California 94104. 

 On January 5, 2010, I served the following document(s): 

 PLAINTIFF’ REQUEST FOR LEAVE TO FILE STATEMENT OF RECENT DECISION 

IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; 

DECLARATION OF SHAAMINI A. BABU IN SUPPORT THEREOF; 

AND [PROPOSED] ORDER 

on the interested parties in said action by First Class U.S. Mail, by placing a true and exact copy of 

each document in a sealed envelope with postage thereon fully prepaid, in a United States Post 

Office box in San Francisco, California, addressed as follows: 

///

Cassandra M. Ferrannini 

DOWNEY BRAND LLP 

621 Capitol Mall, 18th Floor 

Sacramento, CA 95814 

 I declare under penalty of perjury that the foregoing is true and correct and that this 

declaration was executed on this 5th day of January, 2010, at San Francisco, California.

_________________________________

 Catherine Jemera 

Case 3:09-cv-00044-SC Document 110 Filed 01/07/10 Page 4 of 4