Domingo v. Management & Training Corporation et al

Filing 34

ORDER on JOINT STIPULATION for Dismissal of Fifth Cause of Action and STAY of Remaining Claims Against Defendant United States, signed by District Judge Anthony W. Ishii on 11/19/15: The action is stayed until resolution of the Edison and Nuwintore Appeals. (Hellings, J)

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BENJAMIN B. WAGNER
United States Attorney
ALYSON A. BERG
Assistant United States Attorney
2500 Tulare Street, Suite 4401
Fresno, California 93721
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendant UNITED STATES OF AMERICA

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LOUIS C. DOMINGO

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Plaintiff,

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v.

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MANAGEMENT & TRAINING
CORPORATION; and JOHN DOES 1-9,

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Defendants.

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Case No. 1:15-cv-00284-AWI−JLT
JOINT STIPULATION FOR
DISMISSAL OF FIFTH CAUSE OF
ACTION AND STAY OF
REMAINING CLAIMS AGAINST
DEFENDANT UNITED STATES

IT IS HEREBY STIPULATED BY AND BETWEEN Plaintiff Luis Domingo, and Defendants

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Management & Training Corporation and the United States, by and through their respective attorneys of

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record, as follows:
This case involves a former Federal Bureau of Prisons (BOP) inmate suing the United States and

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its contractor, Management & Training Corporation, for a miscellany of claims arising from the alleged

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failure to prevent plaintiff from contracting Coccidioidomycosis (commonly referred to as Valley Fever

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or Cocci) while incarcerated at Taft CI.
Plaintiff agrees to a dismissal of the fifth cause of action against the United States alleging a

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claimed violation of the plaintiff's Eighth Amendment rights. As to the remaining claims against the

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United States, the United States expressly reserves its right to assert any and all defenses to any

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allegations made against it in this litigation, including, but not limited to, the timeliness of plaintiff’s

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///

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JOINT STIPULATION FOR DISMISSAL OF FIFTH CAUSE OF ACTION AND
STAY OF REMAINING CLAIMS AGAINST DEFENDANT UNITED STATES

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claims, the independent contractor exception to the Federal Tort Claims Act (FTCA), and the

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discretionary function exception to the FTCA.

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A dispositive issue in this case is whether plaintiff's remaining causes of action against the

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United States are barred by the independent contractor exception to the FTCA because MTC controlled

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the "day to day" operations at Taft CI. Plaintiff's claims are related to the claims in the matter of Edison

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v United States, which action is currently on appeal as Ninth Circuit Case No. 14-15472, as well as the

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claims in the matter of Nuwintore v United States, also on appeal as Ninth Circuit Case No. 14-17546.

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As briefing in both cases is complete, and the parties are awaiting a date for oral argument in February

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2016, a stay will not cause substantial delay in this action. Leyva v. Certified Grocers of California,

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Ltd., 593 F.2d 857, 863-64 (9th Cir.1979) ("[a] trial court may, with propriety, find it is efficient for its

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own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution

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of independent proceedings which bear upon the case."). In this regard, the undersigned parties hereby

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jointly request that the Court stay this action pending resolution of the appeals in Edison v United States,

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Ninth Circuit Case No. 14-15472, and Nuwintore v United States, Ninth Circuit Case No. 14-17546, on

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the basis of the good cause set forth above.

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Accordingly, the undersigned parties respectfully request that the Court enter the [proposed]

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order set forth below dismissing the fifth cause of action and stay this action pending resolution of the

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Edison and Nuwintore appeals.
Respectfully submitted,

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Dated: November 18, 2015

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/s/Alyson A. Berg
ALYSON A. BERG
Assistant United States Attorney
Attorney for Defendant United States of America

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BENJAMIN B. WAGNER
UNITED STATES ATTORNEY

Dated: November 17, 2015

Respectfully submitted,

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FELDMAN & WALLACH

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(As authorized 11/17/15)

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/s/Ian Wallach
Ian Wallach
Attorneys for Plaintiff Luis C. Domingo

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JOINT STIPULATION FOR DISMISSAL OF FIFTH CAUSE OF ACTION AND
STAY OF REMAINING CLAIMS AGAINST DEFENDANT UNITED STATES

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Dated: November 16, 2015

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Respectfully submitted,
Burke, Williams & Sorensen, LLP
(As authorized 11/16/15)

/s/Susan Coleman
Susan Coleman
Attorney for Defendant Management &
Training Corporation

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ORDER

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Having reviewed the stipulation submitted by the parties, and for good cause, the court hereby

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dismisses the fifth cause of action against the United States and stays the action until resolution of the

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Edison and Nuwintore appeals.

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IT IS SO ORDERED.
Dated: November 19, 2015
SENIOR DISTRICT JUDGE

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JOINT STIPULATION FOR DISMISSAL OF FIFTH CAUSE OF ACTION AND
STAY OF REMAINING CLAIMS AGAINST DEFENDANT UNITED STATES

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