Kristine Livingston et al v. Kempersports Management, Inc.

Filing 52

STIPULATION and ORDER Regarding Plaintiffs' Voluntary Dismissal of Claims signed by District Judge Lawrence J. O'Neill on 4/10/2014. (Sant Agata, S)

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LAW OFFICES OF DEAN B. GORDON
Dean B. Gordon (SBN 61311) [e-mail]
1200 East Olive Avenue
Fresno, California 93728
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiffs
KRISTINE LIVINGSTON, IZAAK LIVINGSTON, JASON ALAN
LIVINGSTON and WESLEY ALEXANDER LIVINGSTON
SEYFARTH SHAW LLP
Michael J. Burns (SBN 172614) [e-mail]
Matthew J. Mason (SBN 271344) [e-mail]
Chantelle C. Egan (SBN 257938) [e-mail]
560 Mission Street, 31st Floor
San Francisco, California 94105
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
KEMPER SPORTS MANAGEMENT, INC.
(erroneously sued as KEMPERSPORTS MANAGEMENT, INC.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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FRESNO

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KRISTINE LIVINGSTON, Individually, and
as Guardian ad Litem for IZAAK
LIVINGSTON, a Minor, JASON ALAN
LIVINGSTON, WESLEY ALEXANDER
LIVINGSTON, as Survivors of Mark
Livingston, Deceased,

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STIPULATION AND ORDER
REGARDING PLAINTIFFS’
VOLUNTARY DISMISSAL OF
CLAIMS

Plaintiffs,

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Case No. 1:12-CV-01427-LJO-SKO

vs.
KEMPERSPORTS MANAGEMENT, INC.,
Defendant.
IT IS HEREBY STIPULATED AND AGREED, by the parties hereto, by and through
their respective counsel of record, as follows:

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STIPULATION AND ORDER REGARDING PLAINTIFFS’ VOLUNTARY DISMISSAL OF CLAIMS / CASE
NO. 1:12-CV-01427-LJO-SKO

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1.

In its February 1, 2013 Scheduling Order, Dkt. No. 26, the Court provided that,

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prior to filing a Motion for Summary Judgment, the parties were ordered to meet and confer for

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the purpose of (1) avoiding filing motions for summary judgment where a question of fact exists;

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(2) determining whether the respondent agrees that the motion has merit in whole or in part; (3)

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discussing whether issues can be resolved without the necessity of briefing; (4) narrowing the

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issues for review by the court; (5) exploring the possibility of settlement before the parties incur

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the expense of briefing a summary judgment motion; and (6) arriving at a joint statement of

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undisputed facts.

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2.

Through the meet and confer process, Plaintiffs have agreed to dismiss those

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portions of their survivor and wrongful death causes of action based on alleged disability

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discrimination, failure to accommodate, failure to engage in the interactive process, retaliation,

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sex discrimination, and sex harassment. Defendant does not believe Plaintiffs alleged claims for

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sex discrimination or sex harassment in their First Amended Complaint. Defendant also

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believes, to the extent any of the alleged bases for Plaintiffs’ survivor and wrongful death actions

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are stated by Plaintiffs, that they should have been stated as individual claims, and will be

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dismissed as individual claims here.

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3.

The Parties also expressly agree that, with this stipulation, neither party is waiving

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any right to seek costs, sanctions or any other redress from the other in connection with this

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litigation prior to the entry of this Stipulation.

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IT IS HEREBY STIPULATED AND AGREED that Plaintiffs are voluntarily dismissing

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any claim, whether as an individual claim or as a basis for a survivor or wrongful death action,

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for: (1) disability discrimination; (2) failure to accommodate a disability; (3) failure to engage in

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the interactive process; (4) retaliation; (5) sex discrimination; or (6) sex harassment. Plaintiffs

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shall not be permitted to revive or assert any of these claims at any point up to and including

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trial. These claims, or Plaintiffs’ claims for a survivor action or wrongful death action based on

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these alleged violations of the FEHA, shall be dismissed with prejudice.

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STIPULATION AND ORDER REGARDING PLAINTIFFS’ VOLUNTARY DISMISSAL OF CLAIMS / CASE
NO. 1:12-CV-01427-LJO-SKO

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IT IS FURTHER HEREBY STIPULATED AND AGREED that, because Plaintiffs have

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voluntarily agreed to dismiss the claims as stated herein, those claims shall not be the subject of

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Defendant’s pending Motion for Summary Judgment.

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IT IS FURTHER HEREBY STIPULATED AND AGREED that the only remaining

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claims, or the remaining bases for Plaintiffs’ survivor action and wrongful death action, are as

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follows: (1) age discrimination in violation of the FEHA; (2) failure to prevent age

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discrimination in violation of the FEHA; and (3) wrongful death. No further claims may be

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raised by Plaintiffs at any point during this litigation.

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IT IS SO STIPULATED

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DATED: April 10, 2014

LAW OFFICE OF DEAN B. GORDON

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By:

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/s/ Dean B. Gordon
Dean B. Gordon

Attorneys for Plaintiffs
KRISTINE LIVINGSTON, IZAAK
LIVINGSTON, JASON ALAN LIVINGSTON
and WESLEY ALEXANDER LIVINGSTON

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DATED: April 10, 2014

SEYFARTH SHAW LLP

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By:

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/s/ Matthew J. Mason
Michael J. Burns
Matthew J. Mason
Chantelle C. Egan

Attorneys for Defendant
KEMPER SPORTS MANAGEMENT, INC.
(erroneously sued as KEMPERSPORTS
MANAGEMENT, INC.)

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STIPULATION AND ORDER REGARDING PLAINTIFFS’ VOLUNTARY DISMISSAL OF CLAIMS / CASE
NO. 1:12-CV-01427-LJO-SKO

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ORDER
The parties having so stipulated, and GOOD CAUSE APPEARING THEREFORE, IT IS
HEREBY ORDERED that:
1.

Plaintiffs’ claims, whether as an individual claim or as a basis for a survivor or

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wrongful death action, for: (1) disability discrimination; (2) failure to accommodate a disability;

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(3) failure to engage in the interactive process; (4) retaliation; (5) sex discrimination; or (6) sex

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harassment are hereby DISMISSED WITH PREJUDICE. Plaintiffs shall not be permitted to

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revive or assert any of these claims at any point up to and including trial.

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2.

The Parties shall not be required to address any of the dismissed claims in

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Defendant’s anticipated Motion for Summary Judgment (and all related papers). The only

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claims to be addressed in the anticipated Motion for Summary Judgment and for all other

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purposes up to and including trial in this case shall be limited to the following claims and/or

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bases for claims: (1) age discrimination in violation of the FEHA; (2) failure to prevent age

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discrimination in violation of the FEHA; and (3) wrongful death. No further claims may be

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raised by Plaintiffs at any point during this litigation.

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SO ORDERED
Dated: April 10, 2014

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/s/ Lawrence J. O’Neill
United States District Judge

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STIPULATION AND ORDER REGARDING PLAINTIFFS’ VOLUNTARY DISMISSAL OF CLAIMS / CASE
NO. 1:12-CV-01427-LJO-SKO