Gomez v. J. Jacobo Farm Labor Contractor, Inc. et al

Filing 188

STIPULATION and ORDER Construing it as a Stipulation to Amend the First Amended Complaint to omit the PAGA Claims signed by District Judge Jennifer L. Thurston on 11/28/2023.(Xiong, J.)

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Michael J.F. Smith, #109426
John L. Migliazzo, #272066
[e-mail]
Michael J.F. Smith, A Professional Corporation
1391 West Shaw Avenue, Suite D
Fresno, California 93711
[phone]
Fax [phone]
Attorneys for Defendant, J JACOBO FARM LABOR CONTRACTOR, INC.

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STAN S. MALLISON (Bar No. 184191)
[e-mail]
HECTOR R. MARTINEZ (Bar No. 206336)
[e-mail]
HEATHER HAMILTON (Bar No. 332545)
[e-mail]
MALLISON & MARTINEZ
1939 Harrison Street, Suite 730
Oakland, CA 94612
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiffs, MARISOL GOMEZ and IGNACIO OSORIO

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARISOL GOMEZ and IGNACIO
OSORIO, on behalf of themselves and all
others similarly situated;

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Plaintiffs;
v.
J JACOBO FARM LABOR
CONTRACTOR, INC.; and DOES 1through
20, inclusive,
Defendants.
_______________________________________

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Case No.: 1:15-cv-01489 AWI-BAM
STIPULATION AND ORDER
CONSTRUING IT AS A
STIPULATIONTO AMEND THE
FIRST AMENDED COMPLAINT
TO OMIT THE PAGA CLAIMS
(Doc. 159)

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STIPULATION AND [PROPOSED] ORDER TO DISMISS CALIFORNIA PRIVATE
ATTORNEY GENERAL ACT OF 2004 (“PAGA”) CLAIMS
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Case 1:15-cv-01489-JLT-BAM Document 159 Filed 02/17/23 Page 2 of 4

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THE PARTIES, BY AND THROUGH THEIR RESPECTIVE ATTORNEYS OF
RECORD, HEREBY STIPULATE AS FOLLOWS:
1.

On September 9, 2015, Plaintiff, MARISOL GOMEZ, filed a Complaint in this

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action. Among other things, the Complaint included representative claims under the California

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Private Attorney General Act of 2004 (Ninth Cause of Action). (Labor Code §§ 2698 et. seq.)

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2.

On August 28, 2018, Plaintiffs, MARISOL GOMEZ and IGNACIO OSORIO,

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filed a First Amended Complaint in this action. Among other things, the First Amended

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Complaint included representative claims under the California Private Attorney General Act of

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2004. (Labor Code §§ 2698 et. seq.)

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3.

Plaintiffs wish to dismiss the State of California claims without prejudice to and

their personal PAGA claims with prejudice.
NOW THEREFORE, Plaintiffs and Defendant hereby stipulate and agree that the

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State’s PAGA claims are dismissed without prejudice. Plaintiffs individual PAGA claims are

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dismissed with prejudice.

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MALLISON & MARTINEZ
Dated: February 17, 2023

By:

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/s/Heather Hamilton
Stan S. Mallison,
Heather Hamilton
Attorney for Plaintiffs

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MICHAEL J.F. SMITH, APC

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Dated: February 17, 2023

By:

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/s/John L. Migliazzo
John L. Migliazzo,
Attorney for Defendant

ATTESTATION
Concurrence in the filing of this document has been obtained from each of the
individual(s) whose electronic signature is attributed above.

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Dated: February 17, 2023

By:

/s/John L. Migliazzo
John L. Migliazzo,
Attorney for Defendant

STIPULATION AND [PROPOSED] ORDER TO DISMISS CALIFORNIA PRIVATE
ATTORNEY GENERAL ACT OF 2004 (“PAGA”) CLAIMS
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ORDER
On proof made to the satisfaction of the Court and good cause appearing, the Court

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ORDERS:
1.

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The stipulation (Doc. 159) is construed as a joint request to amend the First

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Amended Complaint under Fed.R.Civ.P. Rule 15, to delete the PAGA claims and all references

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to it.1
2.

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As construed, the Court GRANTS the stipulation (Doc. 159) and deems the

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First Amended Complaint (Doc. 95) to be amended to delete the PAGA claim set forth in the

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Ninth Claim for Relief and to delete all references to PAGA made throughout the complaint.
3.

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The operative answers to the First Amended Complaint are deemed responsive

to the amendments described above.
Dated: November 28, 2023

______________________________
Jennifer L. Thurston
U.S. District Judge

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Although the stipulation does not invoke a Federal Rule of Civil Procedure, the Court assumes the parties
intended it to be a Rule 41(a)(1)(A)(ii) stipulated dismissal of certain claims. However, Rule 41(a) is not the
appropriate mechanism to dismiss claims from a case, where other claims remain against the same defendants.
See Gen. Signal Corp. v. MCI Telecommunications Corp, 66 F.3d 1500, 1513 (9th Cir. 1995) (“[W]e have held
that Rule 15, not Rule 41, governs the situation when a party dismisses some, but not all, of its claims.”). The
Court does not suggest that how it has addressed the stipulation here is an ideal model, but takes this action in the
interest of expediency.
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