AMCO Insurance Company v. Abby Farms, Inc.

Filing 33

STIPULATION and ORDER to Dismiss Second Cause of Action of Counterclaim without Prejudice signed by District Judge Lawrence J. O'Neill on 9/23/2009. (Flores, E)

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MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Gordon M. Park, # 072190 Dana B. Denno, # 227971 McCormick, Barstow, Sheppard, Wayte & Carruth LLP P.O. Box 28912 5 River Park Place East Fresno, CA 93720-1501 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff AMCO INSURANCE COMPANY

(SPACE BELOW FOR FILING STAMP ONLY)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

AMCO INSURANCE COMPANY, a Corporation, Plaintiff, v. ABBY FARMS, INC., dba MERCADO DEL VALLE, a California Corporation,, Defendant. ABBY FARMS, INC., a California Corporation, Counterclaimant, v. AMCO INSURANCE COMPANY, a Corporation, ROES 1-20, Counterdefendant.

Case No. 01-08-cv-01684-LJO-GSA STIPULATION AND ORDER TO DISMISS SECOND CAUSE OF ACTION OF COUNTERCLAIM WITHOUT PREJUDICE

IT IS HEREBY STIPULATED AND AGREED by and between the Parties, through their respective counsel of record, as follows: 1. That Defendant/Counterclaimant Abby Farms, Inc. will dismiss, without prejudice,

its Second Cause of Action of the Counterclaim for Breach of The Covenant of Good Faith and Fair Dealing;
STIPULATION RE DISMISSAL WITHOUT PREJUDICE OF SECOND CAUSE OF ACTION OF COUNTERCLAIM 01-08-CV-01684-LJO-GSA

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MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

2.

That, in the event that Defendant/Counterclaimant Abby Farms, Inc. is determined

to be the prevailing party on its First Cause of Action for Breach of Contract and/or Plaintiff's Complaint, Plaintiff and Counterdefendant, AMCO INSURANCE COMPANY stipulates that Defendant/Counterclaimant Abby Farms, Inc. may amend its counterclaim to renew its Second Cause Of Action of the Counterclaim for Breach of the Covenant of Good Faith and Fair Dealing as part of these proceedings, or Abby may proceed on such cause of action in such other court as Abby may elect, subject to AMCO's rights of defense, including those relating to jurisdiction and venue. AMCO retains any and all rights to challenge and defend against same, none of which are hereby waived. The parties further stipulate that the statute of limitations for the Second Cause of Action of the Counterclaim for Breach of the Covenant of Good Faith and Fair Dealing is tolled from the date of execution of this stipulation until the date the instant proceedings are resolved by way of settlement and dismissal, summary disposition, or judgment on jury verdict. 3. Accordingly, pre-trial discovery and matters admitted to the Court in advance of

and at the November 8, 2010 trial pursuant to the July 6, 2009 Scheduling Conference Order, subject to motions in limine and evidentiary rulings at trial, shall be limited to matters relating only to Plaintiff's claims for declaratory relief and Defendant/Counterclaimants' claims for breach of contract.

Dated: September 22, 2009

JAMES C. HOLLAND ATTORNEY AT LAW

By: /s/ James C. Holland James C. Holland Attorneys for Defendant and Counterclaimant, ABBY FARMS, INC., dba MERCADO DEL VALLE

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STIPULATION RE DISMISSAL WITHOUT PREJUDICE OF SECOND CAUSE OF ACTION OF COUNTERCLAIM 01-08-CV-01684-LJO-GSA

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MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

Dated: September 22, 2009

McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP

By: /s/ Gordon M. Park Gordon M. Park Dana B. Denno Attorneys for Plaintiff and Counterdefendant, AMCO INSURANCE COMPANY AMCO v. ABBY FARMS Case No. 01-08-cv-01684-LJO-GSA ORDER The Court, having considered the stipulation of the parties, and for good cause shown, IT IS HEREBY ORDERED that: 1. The Second Cause of Action of the Counterclaim for Breach of the Covenant of

Good Faith and Fair Dealing is dismissed, without prejudice; 2. That, in the event Defendant/Counterclaimant Abby Farms, Inc. is determined to

be the prevailing party on its First Cause of Action for Breach of Contract and/or Plaintiff's Complaint, Defendant/Counterclaimant Abby Farms, Inc. will be granted leave to amend its Counterclaim to renew its Second Cause of Action of the Counterclaim for Breach of the Covenant of Good Faith and Fair Dealing as part of these proceedings or Abby may proceed on such cause of action in such other court as Abby may elect, subject to AMCO's rights of defense, including those relating to jurisdiction and venue. AMCO retains any and all rights to challenge and defend against same, none of which are hereby waived. The statute of limitations for the Second Cause of Action of the Counterclaim for Breach of the Covenant of Good Faith and Fair Dealing is tolled until final resolution of this matter, either by way of settlement and dismissal, summary disposition, or judgment on jury verdict. /// /// /// /// 3
STIPULATION RE DISMISSAL WITHOUT PREJUDICE OF SECOND CAUSE OF ACTION OF COUNTERCLAIM 01-08-CV-01684-LJO-GSA

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MCCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP
5 RIVER PARK PLACE EAST FRESNO, CA 93720-1501

3.

Pre-trial discovery and matters admitted to the Court in advance of and at the

November 8, 2010 trial pursuant to the July 6, 2009 Scheduling Conference Order, subject to motions in limine and evidentiary rulings at trial, shall be limited to matters relating only to Plaintiff's claims for declaratory relief and Defendant/Counterclaimants' claims for breach of contract. Dated: _September 23, 2009__ __/s/ Lawrence J. O'Neill________ United States District Court

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STIPULATION RE DISMISSAL WITHOUT PREJUDICE OF SECOND CAUSE OF ACTION OF COUNTERCLAIM 01-08-CV-01684-LJO-GSA