[GSA] Latoya McKenzie, et al. vs. Kern County, et al.

Filing 41

STIPULATION and ORDER Regarding the Filing of a Responsive Pleading to The First Amended Complaint signed by Magistrate Judge Gary S. Austin on 12/10/2009. (Esteves, C)

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OFFICE OF COUNTY COUNSEL COUNTY OF KERN, STATE OF CALIFORNIA By Andrew C. Thomson, Deputy (Bar # 149057) County Administrative Center 1115 Truxtun Avenue, Fourth Floor Bakersfield, California 93301 Telephone: [phone] Facsimile: [phone] Attorney for Defendants, County of Kern, Kern County Sheriff's Office, Otis Whinery, Douglas Jauch, Edward Tucker and Patrick Neal UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA LATOYA MCKENZIE, an individual; B.M., an individual; C.M., an individual by and through her Guardian Ad Litem Latoya McKenzie; R.M., JR., an individual by and through his Guardian Ad Litem Latoya McKenzie; Z.P., an individual by and through her Guardian Ad Litem Latoya McKenzie; A.M. an individual by and through her Guardian Ad Litem Brittney Shelby; Z.H. and individual by and through her Guardian Ad Litem Denise Harris; J.J. an individual by and through his Guardian Ad Litem Monica Joiner; Plaintiffs, v. KERN COUNTY; KERN COUNTY SHERIFF'S DEPARTMENT; OTIS WHINERY; DOUGLAS JAUCH; EDWARD TUCKER; PATRICK NEAL; AND DOES 1-200 INCLUSIVE, Defendants. /// /// Case No. 1:09-CV-01658-AWI-BAK GSA STIPULATION OF THE PARTIES REGARDING THE FILING OF A RESPONSIVE PLEADING TO THE FIRST AMENDED COMPLAINT

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S t ip u la t io n of the Parties Regarding the Filing of a Responsive Pleading to the FAC

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COME NOW, the Parties herein, by and through their respective counsel of record, Tyler R. Dowdall, Esq., SAYRE & LEVITT, for Plaintiffs LaToya McKenzie, B.M., C.M., R.M., Jr., Z.P., A.M., Z.H., and J.J. (hereinafter collectively "Plaintiffs"), and Andrew C. Thomson, Deputy, Office of Kern County Counsel, for Defendants County of Kern, Kern County Sheriff's Office erroneously sued herein as the Kern County Sheriff's Department, Otis Whinery, Douglas Jauch, Edward Tucker and Patrick Neal (hereinafter collectively "Defendants") and, with the authority of their respective clients, agree as follows: 1. The Parties have repeatedly met and conferred regarding various issues regarding

the Complaint and the FAC. Pursuant to agreement, Plaintiffs filed a First Amended Complaint (FAC) on December 1, 2009 (Docket Document No. 39). However, the FAC does not include the required affidavits regarding the heirs, representatives and successors in interest required under Cal. Code Civ. Pro.§ 377.60. 2. Counsel for Plaintiffs has stated that the affidavits will be filed as the documents are

returned to counsel's office. Since some of the Plaintiffs, and/or their representatives and/or Guardians, live out-of-state, the filing of all of the affidavits will not occur within ten days of the filing of the FAC, the deadline for the filing of County Defendants' responsive pleading. 3. County Defendants believe that in the absence of the required affidavits which will

verifying standing, and address other issues, regarding the numerous Plaintiffs, a 12(b)(6) Motion to Dismiss would need to be filed in response to Plaintiffs' FAC. 4. Based upon Plaintiffs representations, County Defendants believe that a 12(b)(6)

Motion to Dismiss may be unnecessary once the affidavits are filed. The Parties are in agreement that, if possible, it would be beneficial to all involved to avoid the cost and time associated with the preparation of a 12(b)(6) Motion, the Opposition, the Reply and a hearing on the motion. 5. Counsel for County Defendants has planned to be absent from the office between

December 19, 2009 and January 3, 2010. ///

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S t ip u la t io n of the Parties Regarding the Filing of a Responsive Pleading to the FAC

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IT IS HEREBY STIPULATED: County Defendants need not file a Responsive Pleading to the FAC at the present time; Plaintiffs' Counsel will notify County Defendants' Counsel when the final affidavit is filed; and, within twenty (20) days after the filing of the final affidavit, but no sooner than January 8, 2010, County Defendants will be required to file a responsive pleading.

Dated: December 8, 2009

SAYRE & LEVITT

By / s / Tyler R. Dowdall Tyler R. Dowdall, Esq. Attorneys for Plaintiffs LaToya McKenzie, B.M., C.M., R.M.,Jr., Z.P., A.M., Z.H., J.J. Dated: December 8, 2009 OFFICE OF COUNTY COUNSEL

By / s / Andrew C. Thomson Andrew C. Thomson, Deputy Attorneys for Defendants County of Kern, Kern County Sheriff's Office, Otis Whinery, Douglas Jauch, Edward Tucker and Patrick Neal

ORDER 19 The parties having stipulated thereto and good cause appearing therefor, 20 21 22 23 24 25 26 27 28
Dated: IT IS SO ORDERED.

December 10, 2009

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/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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S t ip u la t io n of the Parties Regarding the Filing of a Responsive Pleading to the FAC