Payne v. State of California et al

Filing 39

STIPULATION and ORDER to Strike John P. Bailey as a Defendant in Count Seven of First Amended Complaint, signed by Magistrate Judge Michael J. Seng on 3/26/18. Amended Complaint Due Within Fourteen Days. (Gonzalez, R)

McCormick, Barstow, Sheppard,
1 Wayte & Carruth LLP
Deborah A. Byron, #105327
2 7647 North Fresno Street
Fresno, California 93720
3 Telephone:
[phone]
Facsimile:
[phone]
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Attorneys for County of Calaveras, erroneously
5 sued herein as Calaveras County Sheriff and
Calaveras County Jail and John P. Bailey
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA,

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SACRAMENTO DIVISION

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COLEMAN PAYNE, an individual,
Plaintiff,

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v.

STATE OF CALIFORNIA, a government
14 entity and state in the United States;
DEPARTMENT OF STATE HOSPITALS, a
15 government agency form unknown;
METROPOLITAN STATE HOSPITAL, an
16 entity form unknown; COUNTY OF
CALAVERAS, a government entity in the
17 State of California; CALAVERAS COUNTY
SHERIFF, a governmental agency of unknown
18 form; CALAVERAS COUNTY JAIL, an
entity form unknown; JOHN P. BAILEY, an
19 individual; JOY LYNCH, an individual;
CALIFORNIA FORENSIC MEDICAL
20 GROUP, a business entity of unknown form
located in the State of California; DOES 2
21 through 50 inclusive,
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Case No. 1:17-cv-00906-DAD-MJS
STIPULATION AND ORDER TO STRIKE
JOHN P. BAILEY AS A DEFENDANT IN
COUNT SEVEN OF FIRST AMENDED
COMPLAINT
The Hon. Michael J. Seng

Defendants.

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IT IS HEREBY STIPULATED by and between Plaintiff Coleman Payne and Defendants
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County of Calaveras and John P. Bailey in the above-captioned case, through their respective
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counsel of record, as follows:
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The purpose of this Stipulation is to allow Plaintiff Coleman Payne to strike the name
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MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

STIPULATION AND [PROPOSED] ORDER TO REMOVE JOHN P. BAILEY AS A DEFENDANT IN COUNT
SEVEN OF FIRST AMENDED COMPLAINT

1 “John P. Bailey” from Count Seven of First Amended Complaint for Damages for Intentional
2 Infliction of Emotional Distress.
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The basis for this Stipulation is that this Court, in ruling on the State Defendants’ Motion

4 to Dismiss, did not permit Plaintiff leave to amend Count Seven of the First Amended Complaint
5 to add John P. Bailey as a defendant charged with intentional infliction of emotional distress.
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Therefore, the parties request that Count Seven of the First Amended Complaint for

7 Damages will be stricken as follows: John P. Bailey, an individual, will be removed as a party
8 against whom Plaintiff seeks to recover damages for intentional infliction of emotional distress,
9 and his name shall be stricken at page 16, line 10, of First Amended Complaint. All requested
10 changes in this stipulation apply to Count Seven only.
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The parties respectfully request that this Court order: 1) the striking of “John P. Bailey”

12 from Count Seven of First Amended Complaint; 2) that Plaintiff be precluded from seeking
13 damages for intentional infliction of emotional distress under Count Seven of Plaintiff’s First
14 Amended Complaint as to Defendant John P. Bailey only; 3) that Defendants County of Calaveras
15 and John P. Bailey may respond to Count Seven of First Amended Complaint as if “John P.
16 Bailey” was stricken from the pleading at page 16, line 10.
Dated: March 22, 2018
McCORMICK, BARSTOW, SHEPPARD,
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WAYTE & CARRUTH LLP
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/s/ Deborah A. Byron
Deborah A. Byron
Attorneys for County of Calveras, erroneously sued
herein as Calaveras County Sheriff and Calaveras
County Jail and John P. Bailey
By:

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Dated: March _22_, 2018

SLATER LAW, APC

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By:

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/s/ Theodore Slater
Theodore Slater
Attorneys for Coleman Payne

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MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

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STIPULATION AND [PROPOSED] ORDER TO REMOVE JOHN P. BAILEY AS A DEFENDANT IN COUNT
SEVEN OF FIRST AMENDED COMPLAINT

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ORDER
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The Court, having reviewed and found acceptable the substance of the Stipulation
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of the parties but, being unwilling to have piecemeal pleadings on file, and finding good
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cause, hereby orders the following:
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1.

That “John P. Bailey” be dismissed as a named defendant in Count Seven

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of Plaintiff’s First Amended Complaint;
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2.
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That Plaintiff is precluded from seeking damages for intentional infliction of

emotional distress against Defendant John P. Bailey in Plaintiff’s First Amended

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Complaint or any amendment thereof;
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3.

That Plaintiff may, and shall within fourteen days of the date of this Order,

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file a Second Amended Complaint in all respects identical to the First Amended
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Complaint except that John P. Bailey shall not appear as a defendant in Count Seven of
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the Second Amended Complaint.
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15 IT IS SO ORDERED.
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Dated:

March 26, 2018

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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MCCORMICK, BARSTOW ,
SHEPPARD, W AYTE &
CARRUTH LLP
7647 NORTH FRESNO STREET
FRESNO, CA 93720

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STIPULATION AND [PROPOSED] ORDER TO REMOVE JOHN P. BAILEY AS A DEFENDANT IN COUNT
SEVEN OF FIRST AMENDED COMPLAINT