Smithee et al v. California Correctional Institution et al

Filing 25

ORDER 24 GRANTING IN PART STIPULATION to Allow the Filing of a Second Amended Complaint, signed by Magistrate Judge Jennifer L. Thurston on 5/23/2019. (Hall, S)

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GREGORY J. BROD, CSB 184456
MARKUS WILLOUGHBY, CSB 197478
WILLOUGHBY BROD, LLP
96 Jessie Street
San Francisco, California 94105
Telephone [phone]
Facsimile [phone]

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Attorneys for Plaintiffs
DANA SMITHEE, E.M.,
a minor by and through guardian
ad litem JENNIFER MONTES

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANA SMITHEE, “E.M.”, a minor, by and
through her guardian ad litem, JENNIFER
MONTES,

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Plaintiffs,
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vs.
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RHONDA LITT-STONER, PRATAP
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NARAYN, M.D., JENNIFER SEYMOUR,
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KELLY NESSON, PhD, KARIN CELOSSE, )
and DOES 1 through 200,
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Defendants.
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Case No. 1:19-cv-0004 LJO JLT
AMENDED STIPULATION AND
PROPOSED ORDER GRANTING IN
PART STIPULATION TO ALLOW THE
FILING OF A SECOND AMENDED
COMPLAINT
(Doc. 24)

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______________________________________________________________________________
AMENDED STIPULATION AND PROPOSED ORDER TO ALLOW FILING OF SECOND AMENDED
COMPLAINT: Case No. 1:19-cv-0004 LJO JLT
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Pursuant to stipulation between the parties, this Court’s April 23, 2019 order (Document

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16), allowed Plaintiffs DANA SMITHEE, “E.M.”, a minor, by and through her guardian ad

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litem, JENNIFER MONTES, to file a First Amended Complaint within 10 days of the Court’s

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order, which plaintiffs have now done.
As a professional courtesy, Defendant’s counsel produced over 1300 pages of Mr.

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AYERS’ medical records to Plaintiffs’ counsel on or about May 1, 2019. Having reviewed that

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material, Plaintiffs now wish to amend their complaint a second time to add new state-law

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claims against Defendants PRATAP NARAYN, M.D., JENNIFER SEYMOUR, KELLY

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NESSON, PhD, and KARIN CELOSSE.

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Initially, upon discovering the identities of the aforementioned defendants, plaintiffs
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chose to submit a notice of claim, pursuant to California Govt. Code § 910, et seq., which

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plaintiffs are now certain was entirely unnecessary, as Cal. Govt. Code § 910(e) requires a claim

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to include the names of the public employee or employees causing the injury damage or loss, if

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known (emphasis added). Defendant has not seen Plaintiffs’ proposed second amended

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complaint, and takes no position as to whether it is sufficiently supported by the previously-

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filed Government claim. Defendant does not waive any defense under the California

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Government Claims Act, including the sufficiency or timeliness of any claim. Defendant agrees

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that allowing the amendment at this early stage of the case will promote efficiency.

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Therefore, defendants and plaintiffs, by and through their respective attorneys, jointly
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stipulate to allow plaintiffs to now file their Second Amended Complaint. The parties further

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stipulate that Defendants shall be entitled to respond to the Second Amended Complaint within

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forty-five (45) days upon being served with the Second Amended Complaint. The parties

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______________________________________________________________________________
AMENDED STIPULATION AND PROPOSED ORDER TO ALLOW FILING OF SECOND AMENDED
COMPLAINT: Case No. 1:19-cv-0004 LJO JLT
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further stipulate that the scheduling conference in this matter, currently set for July 18, 2019, be
continued to August 15, 2019.

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IT IS SO STIPULATED.

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Dated: May 22, 2019

WILLOUGHBY BROD, LLP

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By:
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/S/ Gregory J. Brod
GREGORY J. BROD

Attorneys for Plaintiffs
DANA SMITHEE, E.M.,
a minor by and through guardian
ad litem JENNIFER MONTES

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Dated: May 22, 2019

XAVIER BECERRA
Attorney General of California
JON S. ALLIN
Supervising Deputy Attorney General

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By: _/S/ Jeremy Duggan (auth. on 5/22/19)_
JEREMY DUGGAN
Deputy Attorney General
Attorneys for Defendant
R. Litt-Stoner

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______________________________________________________________________________
AMENDED STIPULATION AND PROPOSED ORDER TO ALLOW FILING OF SECOND AMENDED
COMPLAINT: Case No. 1:19-cv-0004 LJO JLT
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[Proposed] ORDER

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Based upon the stipulation of the parties, the Court ORDERS:

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The plaintiff SHALL file any amended complaint no later than May 30, 20191;

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2.

The defendants SHALL file a responsive pleading within 21 days of the filing of

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the second amended complaint.

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IT IS SO ORDERED.
Dated:

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May 23, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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The parties offer no explanation for the delays in filing the complaint and the response. This case was filed nearly
six months ago, and it has not progressed. This matter SHALL proceed more efficiently in the future and any
requests to delay this process SHALL be supported by good cause.

______________________________________________________________________________
AMENDED STIPULATION AND PROPOSED ORDER TO ALLOW FILING OF SECOND AMENDED
COMPLAINT: Case No. 1:19-cv-0004 LJO JLT
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