Abston et al v. City of Merced et al

Filing 26

STIPULATION and ORDER to amend complaint signed by Judge Oliver W. Wanger on 11/18/2009. (Kusamura, W)

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

JOHN L. BURRIS, Esq./ State Bar #69888 BENJAMIN NISENBAUM, Esq./State Bar #222173 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Centre 7677 Oakport Street, Suite 1120 Oakland, California 94621 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MAUREEN ABSTON, individually, and as Personal Representative of the Estate of RICHARD ABSTON; COREY ABSTON; JACY ABSTON; LINDA ABSTON Plaintiffs, vs. CITY OF MERCED, a municipal corporation; RUSS THOMAS, in his capacity as Sheriff for the CITY OF MERCED; J. HART, individually and in his capacity as a police officer for CITY OF MERCED; B. DALIA, individually, and in his capacity as a police officer for the CITY OF MERCED; N. ARELLANO, individually and her capacity as a police officer for the CITY OF MERCED; S. KENSEY, individually; and DOES 1-25, inclusive, Defendants. / Case No. 1:09-CV-00511 OWW GSA STIPULATION AND ORDER TO AMEND COMPLAINT

STIPULATION WHEREAS the Court ruled on Defendants' Motion for Judgment on the pleadings in the above-entitled action (see document no. 23 filed in the above-entitled action, Memorandum Decision Re: Defendants' Motion for Judgment on the Pleadings", hereinafter "Memorandum Decision").

STIPULATION AND (PROPOSED) ORDER TO AMEND COMPLAINT

1

PDF created with pdfFactory trial version www.pdffactory.com

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

WHEREAS the Court's decision in its Memorandum Decision found that Plaintiffs' First Cause of Action in their Complaint gave no notice that Plaintiffs alleged a violation of their own Fourteenth Amendment substantive due process rights to familial companionship and society with the Decedent, RICHARD ABSTON. WHEREAS, the parties jointly stipulate that Plaintiffs may amend the First Cause of Action in their Complaint to clarify the First Cause of Action to specifically set forth violations of each Plaintiff's own Fourteenth Amendment substantive due process rights to familial companionship and society with the Decedent, RICHARD ABSTON. IT IS SO STIPULATED. Respectfully submitted, Dated: November 3, 2009 The Law Offices of John L. Burris

/s/ Benjamin Nisenbaum _________ Benjamin Nisenbaum Attorney for Plaintiffs Dated: November 3, 2009 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California JAMES M. SCHIAVENZA Senior Assistant Attorney General

/s/ STEVEN M. GEVERCER Supervising Deputy Attorney General Attorneys for Defendant Shane Kensey

STIPULATION AND (PROPOSED) ORDER TO AMEND COMPLAINT

2

PDF created with pdfFactory trial version www.pdffactory.com

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

Dated: November 3, 2009

Respectfully submitted, LOW BALL AND LYNCH /s/ DALE L. ALLEN, JR. Attorneys for Defendants City of Merced; Russ Thomas; J. Hart; B. Dalia and N. Arellano

ORDER PURSUANT TO THE PARTIES' STIPULATIONS, Plaintiffs shall file a First Amended Complaint amending the First Cause of Action to specifically set forth violations of each Plaintiff's own Fourteenth Amendment substantive due process rights to familial companionship and society with the Decedent, RICHARD ABSTON within 30 days from the issuance of this Order. IT IS SO ORDERED.

Dated: November 18, 2009

/s/ OLIVER W. WANGER Honorable Oliver W. Wanger UNITED STATES DISTRICT JUDGE

STIPULATION AND (PROPOSED) ORDER TO AMEND COMPLAINT

3

PDF created with pdfFactory trial version www.pdffactory.com