Davies v. Lowes Home Improvement LLC

Filing 15

STIPULATION and ORDER TO ALLOW PLAINTIFF TO FILE SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 15(A)(2), not ACCEPTED, signed by Magistrate Judge Michael J. Seng on 3/13/2017. (Lafata, M)

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Sally K. Chenault, State Bar No. 122184
CHENAULT LAW
67 Linoberg Street, Suite B
Sonora, CA 95370
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for Plaintiff Brandi Davies

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, FRESNO DIVISION

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BRANDI DAVIES,

Case No.: 1:16-CV-1219-AWI-MJS

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Plaintiff,

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vs.
LOWE'S HOME IMPROVEMENT, LLC
and DOES 1 through 20, inclusive,

STIPULATION TO ALLOW PLAINTIFF
TO FILE SECOND AMENDED
COMPLAINT PURSUANT TO FED. R.
CIV. P. 15(A)(2)

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Defendant(s).

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STIPULATION TO ALLOW PLAINTIFF TO FILE SECOND AMENDED
COMPLAINT PURSUANT TO FED. R. CIV. P. 15(A)(2)
WHEREAS, on May 25, 2016, BRANDI DAVIS (“Plaintiff”) filed her Complaint
which causes of action include Premises Liability, Willful Failure to Warn and Negligence in
this action against LOWES HOME IMPROVEMENT, LLC (“Defendant”) in the Superior
Court of California in Tuolumne County.
WHEREAS, on June 29, 2016, having discovered the true name of Defendant to be
Lowes Home Centers, LLC, and recognizing count two in the original complaint, Willful

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STIPULATION TO ALLOW PLAINTIFF TO FILE SECOND AMENDED COMPLAINT PURSUANT TO FED.
R. CIV. P. 15(A)(2) - PAGE 1 OF 5
IRMO Davies v. Lowes
Case No.: 1:16-cv-01219-AWI-MJS

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Failure to Warn, as not applicable to this particular situation, Plaintiff filed the Amendment to

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Complaint to Correct Name of Defendant and to Strike Count Two of the First Cause of Action

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in the Superior Court of California in Tuolumne County.

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WHEREAS, on August 16, 2016, Defendants removed this action to the United States
District Court Eastern District of California-Fresno Division.

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WHEREAS, when counsel for Plaintiff was preparing the Joint Schedule Report in

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November 2016, it was discovered that the Complaint erroneously indicated that Plaintiff had

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injured her right proximal humerus, when Plaintiff's injury was in fact to her left proximal

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humerus. This error was made in one location of the Complaint, on page 4, Prem L-1.

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WHEREAS, immediately after discovery of the clerical error, Plaintiff's counsel on

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November 7, 2016, corresponded with defense counsel to both alert defense counsel to the

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error, and to inform counsel that an amendment might be necessary to correctly identify the

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injury as a left-sided injury.

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WHEREAS, on November 17, 2016, the parties engaged in a telephonic status

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conference with US Magistrate Michael J. Seng to review the litigation schedule and at this

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status conference, Plaintiff's counsel advised that a scrivener's error had been discovered in the

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complaint, wherein the injury was described as a right shoulder injury instead of a left shoulder

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injury.

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WHEREAS, at the November 17, 2017 status conference, Plaintiff's counsel advised

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that an amended complaint might be necessary to which Magistrate Seng stated in essence that

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it was not a big deal and that it might not even be necessary, but did suggest that counsel might

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want to correct the error anyway.

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STIPULATION TO ALLOW PLAINTIFF TO FILE SECOND AMENDED COMPLAINT PURSUANT TO FED.
R. CIV. P. 15(A)(2) - PAGE 2 OF 5
IRMO Davies v. Lowes
Case No.: 1:16-cv-01219-AWI-MJS

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WHEREAS, Plaintiff’s counsel, through various emails with opposing counsel from

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December 8, 2017 through January 12, 2017, attempted to correct error prior to January 17,

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2017 deadline to amend pleadings by filing a Stipulation with opposing counsel.

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WHEREAS, on January 31, 2017, Plaintiff filed a Notice of Errata to Plaintiff’s
Complaint and Amendment to Plaintiff’s Complaint.

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WHEREAS, on February 13, 2017 Defendant filed their Objection to the Notice of
Errata of Plaintiff’s Complaint and Amendment to Complaint.

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WHEREAS, on February 14, 2017, Honorable Judge Anthony W. Ishii issued an Order
Setting Briefing Schedule setting deadlines for Plaintiff’s opposition and Defendant’s reply
briefs.

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WHEREAS, on February 22, 2017, Plaintiff filed an Opposition to Defendant’s
Objection to Notice of Errata of Plaintiff’s Complaint and Amendment to Complaint.

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WHEREAS, on February 27, 2017, the parties met and conferred and agreed to

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stipulate to the following:

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IT IS HEREBY STIPULATED AND AGREED by and between the parties to the above-

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captioned matter through their respective counsel for record as follows:

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1. Plaintiff should be granted leave to amend to file the Notice of Errata of Plaintiff’s

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Complaint and Amendment to Complaint which is attached as "Exhibit A."

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2. Defendant will withdraw its Objection to the Notice of Errata of Plaintiff’s

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Complaint and Amendment to Complaint.

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//

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//

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//

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STIPULATION TO ALLOW PLAINTIFF TO FILE SECOND AMENDED COMPLAINT PURSUANT TO FED.
R. CIV. P. 15(A)(2) - PAGE 3 OF 5
IRMO Davies v. Lowes
Case No.: 1:16-cv-01219-AWI-MJS

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3. Plaintiff will withdraw her Opposition to Defendant’s Objection to Notice of Errata
of Plaintiff’s Complaint and Amendment to Complaint.

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Dated: 3/2/2017

CHENAULT LAW

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/s/ Sally K. Chenault
SALLY K. CHENAULT
Attorney for Plaintiff
BRANDI DAVIES

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Dated: 3/2/2017

THARPE AND HOWELL, LLP

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/s/ Diana M. Riviera
CHARLES D. MAY
DIANA M. RIVIERA
Attorneys for Defendant
LOWES HOME CENTERS, LLC

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ORDER

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The Court has considered the above Stipulation, but is unable to determine its meaning
and intent, and so cannot accept it.
The Stipulation purports to be a Stipulation to File a Second Amended Complaint, but no
proposed Second Amended Complaint is attached and, as best of the Court can tell, the
Stipulation as worded simply authorizes the filing of errata to a state Court pleading, not the
filing of a Second Amended Complaint.
If the parties are in agreement that Plaintiff may file a Second Amended Complaint (a
seemingly reasonable proposition under the circumstances described in the Notice of Errata),
they may do so with a simple stipulation to the filing of a Second Amended Complaint, attaching
STIPULATION TO ALLOW PLAINTIFF TO FILE SECOND AMENDED COMPLAINT PURSUANT TO FED.
R. CIV. P. 15(A)(2) - PAGE 4 OF 5
IRMO Davies v. Lowes
Case No.: 1:16-cv-01219-AWI-MJS

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a copy of the proposed Second Amended Complaint to the Stipulation, and setting forth the time

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Defendant will have to respond to the Second Amended Complaint once filed.

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IT IS SO ORDERED.

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Dated:
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March 13, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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STIPULATION TO ALLOW PLAINTIFF TO FILE SECOND AMENDED COMPLAINT PURSUANT TO FED.
R. CIV. P. 15(A)(2) - PAGE 5 OF 5
IRMO Davies v. Lowes
Case No.: 1:16-cv-01219-AWI-MJS