McNally et al v. Eye Dog Foundation for the Blind, Inc. et al

Filing 151

STIPULATION and ORDER for Release of Funds in the Eye Dog Foundation Profit Sharing Plan, signed by Chief Judge Anthony W. Ishii on 9/30/2011. (Jessen, A)

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Robert L. Sullivan, Jr., # 41711
Devon R. McTeer, #230539
McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
P.O. Box 28912
5 River Park Place East
Fresno, CA 93720-1501
Telephone:
[phone]
Facsimile:
[phone]

(SPACE BELOW FOR FILING STAMP ONLY)

Attorneys for Plaintiffs
MONTRY MCNALLY; RUBY BELL; and
KENNETH BALES

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MONTRY MCNALLY; RUBY BELL;
and KENNETH BALES,
Plaintiffs,

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STIPULATION AND ORDER FOR
RELEASE OF FUNDS IN THE EYE DOG
FOUNDATION PROFIT SHARING PLAN

v.
EYE DOG FOUNDATION FOR THE
BLIND, INC.; EYE DOG FOUNDATION
PROFIT SHARING PLAN; GWEN
BROWN, an individual, and DOES 1
through 50,
Defendants.

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Case No. 1:09-CV-01184-AWI-SKO

THE PARTIES TO THE ABOVE-CAPTIONED ACTION, BY AND THROUGH
THEIR UNDERSIGNED COUNSEL OF RECORD, HEREBY STIPULATE AS FOLLOWS:
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That on May 4, 2010, Plaintiff MONTRY MCNALLY, RUBY BELL and

KENNETH BALES (hereafter collectively referred to as “Plaintiffs”) filed a Motion For a
Preliminary Injunction with this Court to freeze the assets in the Morgan Stanley accounts
relating to the EYE DOG FOUNDATION PROFIT SHARING PLAN (hereafter referred to as
the “the PLAN”). By way of their Motion, Plaintiffs asked this Court to enjoin and restrain
Defendants EYE DOG FOUNDATION FOR THE BLIND, INC., EYE DOG FOUNDATION
PROFIT SHARING PLAN and GWEN BROWN (hereafter collectively referred to as

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MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
5 R IVER PARK PLACE EAST
FRESNO, CA 93720-1501

STIPULATION AND ORDER FOR RELEASE OF FUNDS

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“Defendants”) and their officers, agents, employees, representatives, and all persons acting in

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concert or participating with them, during the pendency of this action, from withdrawing from

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Morgan Stanley account numbers 238 133040 350 and 238 133040 165, or any other accounts

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relating to the PLAN.

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2.

On May 28, 2010, the Court issued an order granting Plaintiffs’ Motion for a

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Preliminary Injunction ordering that a preliminary injunction should be issued to freeze the assets

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in the Morgan Stanley accounts relating to the PLAN.

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3.

On September 26, 2011, the parties entered into a settlement agreement after a

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settlement conference was held before Magistrate Sheila K. Oberto. Pursuant to the settlement,

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Defendants agreed to distribute to Plaintiffs, who are beneficiaries under the PLAN, the full

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amount of benefits owed to their sister, Lequita McKay, a participant in the PLAN. As of April

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30, 2011, Lequita McKay’s total interest in the PLAN was $252,723.35. (Attached hereto as

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Exhibit “A” is a true and correct copy of a September 28, 2011 fax from Stephanie Copner at

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Retirement Plan Consultants attaching the Participant Account Statement for Lequita McKay

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reflecting the total balance of $252,723.35.)

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4.

Due to the above-referenced settlement agreement, it is now necessary to distribute

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Lequita McKay’s interest in the PLAN to her beneficiaries. The parties hereby agree that, within

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30 days from the date in which the Court issues an Order and prior to the unfreezing of the

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Morgan Stanley accounts at issue, a cashiers check shall be distributed directly from Morgan

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Stanley to Plaintiffs MONTRY MCNALLY, RUBY BELL and KENNETH BALES in the

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amount of $252,723.35. Said check will be delivered to Plaintiffs’ counsel, in care of Robert L.

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Sullivan at McCormick, Barstow, Sheppard, Wayte & Carruth at 5 River Park Place East, Fresno,

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California 93720.

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5.

After the funds are released directly from Morgan Stanley to Plaintiffs, the

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remainder of the account which includes the PLAN assets will be unfrozen and the preliminary

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injunction will be vacated. Until such time as the cashier’s check is distributed to Plaintiffs, no

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funds shall be withdrawn from the Morgan Stanley accounts.

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\\\

MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
5 R IVER PARK PLACE EAST
FRESNO, CA 93720-1501

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STIPULATION AND ORDER FOR RELEASE OF FUNDS

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McCormick, Barstow, Sheppard,
Wayte & Carruth LLP

Dated: September 30, 2011
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By:

/s/ Devon R. McTeer
Devon R. McTeer
Robert L. Sullivan, Jr.
Attorneys for Plaintiffs, MONTRY
MCNALLY; RUBY BELL; and KENNETH
BALES

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Dated: September 30, 2011

By:

/s/ Ralph E. Harrison II
Ralph E. Harrison II
Attorney for Defendants, EYE DOG
FOUNDATION FOR THE BLIND, INC.;
EYE DOG FOUNDATION PROFIT
SHARING PLAN; and GWEN BROWN

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ORDER

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After full consideration of the terms of the stipulation by the parties as set forth above, this
Court, being fully advised, and good cause appearing, makes the following order:

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It is ordered that, within 30 days of the date of this Order and prior to the unfreezing of the
Morgan Stanley accounts at issue, a cashiers check in the amount of $252,723.35, shall be
distributed in the name of MONTRY MCNALLY, RUBY BELL, and KENNETH BALES, in
care of their attorney Robert L. Sullivan at the law offices of McCormick, Barstow, Sheppard,
Wayte & Carruth, located at 5 River Park Place East, Fresno, California 93720. After the funds
are released from Morgan Stanley to Plaintiffs, the preliminary injunction will be vacated and the
remainder of the account will be unfrozen. Until such time as the cashier’s check is distributed to
Plaintiffs, no funds shall be withdrawn from the Morgan Stanley accounts.

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IT IS SO ORDERED.

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Dated: September 30, 2011

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CHIEF UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

0m8i788

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MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
5 R IVER PARK PLACE EAST
FRESNO, CA 93720-1501

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STIPULATION AND ORDER FOR RELEASE OF FUNDS