Garber, et al. v. City of Clovis, et al.

Filing 8

STIPULATION and ORDER signed by Chief Judge Anthony W. Ishii on 4/20/2009 withdrawing 6 MOTION to DISMISS without prejudice subject to re-notice.(Lundstrom, T)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

James D. Weakley, Esq. Erica M. Camarena, Esq.

Bar No. 082853 Bar No. 227981

WEAKLEY, ARENDT & McGUIRE, LLP 1630 East Shaw Avenue, Suite 176 Fresno, California 93710 Telephone: [phone] Facsimile: [phone]

Attorneys for Defendant, CITY OF CLOVIS, OFFICE ABBY SPENCER, CHIEF JIM ZULIM and SGT. MCFADDEN

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

CHESTER S. GARBER, BETTY C. TING, EMILIA C. TING, M.D., EMILIA C. TING, M.D., INC., GARBER T. SERVICES CO., INC., AND GOLDEN VALLEY AERO, INC.,

) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) CITY OF CLOVIS; ABBY SPENCER, SGT. ) McFADDEN; POLICE CHIEF JIM ZULIM ) in Their Individual and Official Capacities; ) and DOES 1-75, Inclusive, ) ) Defendants. ) ____________________________________ )

CASE NO. 1:09-cv-00242-AWI-SMS STIPULATION TO WITHDRAW DEFENDANTS' MOTION TO DISMISS WITHOUT PREJUDICE SUBJECT TO RENOTICE; AND REQUEST TO VACATE HEARING Date: May 4, 2009 Time: 1:30 p.m. Court: Two Honorable Anthony W. Ishii

Complaint Filed: 02/05/09

The parties herein, by and through their respective counsel, hereby enter the following stipulation: Defendants withdraw their pending motion to dismiss filed on March 31, 2009 and scheduled to be heard on May 4, 2009. This withdrawal is without prejudice and subject to renotice. (Court Docket No. 6) While plaintiffs do not concede their government tort claim was filed late, Plaintiffs nevertheless intend on filing a petition with the City of Clovis to seek relief from late filing. Plaintiffs will file their petition with the City of Clovis no later than June 30, 2009. The City of Clovis has up to 45 days to consider that request. Within thirty (30) calendar days after the

____________________________
Stipulation to Withdraw Motion to Dismiss & Proposed Order

1 2 3 4 5 6 7 8 9 10 11 12 13

petition is denied by affirmative rejection or by operation of law, plaintiffs will file a petition with this Court seeking relief from late filing; and will simultaneously file an amended complaint. If, however, the petition is granted by the City of Clovis, plaintiffs will then proceed by filing their amended complaint, also within thirty (30) days thereafter. If no such amendment is filed by the thirtieth day after the decision is made by the City of Clovis on plaintiff's petition, defendants will re-notice a hearing on their motion as soon thereafter as the matter can be heard. The parties further agree that the hearing on May 4, 2009 will be vacated. IT IS SO STIPULATED.

DATED: April 17, 2009 WEAKLEY, ARENDT & McGUIRE, LLP By: /s/ Erica M. Camarena Erica M. Camarena Attorneys for Defendants

14 15 16 17 By: 18 19 20 21 DATED: April 17, 2009

THE LAW OFFICE OF JACOB M. WEISBERG /s/ Jack M. Weisberg Jacob M. Weisberg Attorney for Plaintiffs ORDER

The Court, having found good cause for the parties' stipulation to have defendants withdraw 22 their pending motion to dismiss without prejudice and subject to re-notice, hereby GRANTS the 23 parties' stipulation. The hearing currently set on May 4, 2009 at 1:30 p.m. in Courtroom Two, is 24 hereby vacated. 25 IT IS SO ORDERED. 26 27 28 Dated: 0m8i78 April 20, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

____________________________
Stipulation to Withdraw Motion to Dismiss & Proposed Order

2