Lewis, et al v. Russell, et al

Filing 439

STIPULATION and ORDER 438 for Dismissal signed by Senior Judge William B. Shubb on 1/11/2013. IT IS HEREBY ORDERED that each of remaining cross-claims asserted by City of Davis ("City") in First Amended Crossclaims in Lewis et al. v. Russ ell et al. (2:03-CV-02646 WBS AC) is DISMISSED with prejudice asagainst Martin Franchises, Inc. ("Martin") ONLY (and not against any other party, person or entity in the action) pursuant to Federal Rule of Civil Procedure 41. According to t erms and conditions in Settlement Agreement and Mutual Release of Claims between the City and Martin, having an effective date of 11/19/2012 (Settlement Agreement): (1) cost recovery under Comprehensive Environmental Response, Compensation, and Liabi lity Act of 1980 (CERCLA) section 107(a); (2) contribution under CERCLA section 113(f); (3) public nuisance under California Code of Civil Procedure (CCP) section 731; (4) public nuisance under Davis Municipal Code section 23.0.0 et seq.; (5) declara tory relief under CERCLA section 113(g); (6) contribution andequitable indemnity; and (7) declaratory relief under 28 U.S.C. section 2201. IT IS FURTHER HEREBY ORDERED that Court maintains jurisdiction to enforce terms of Settlement Agreement. IT IS FURTHER HEREBY ORDERED that City and Martin shall bear their own costs and attorneys' fees with respect to dismissed cross-claims, as provided in Settlement Agreement. (Marciel, M)

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COTA COLE LLP
JENNIFER HARTMAN KING (Bar No. 211313)
MIRANDA CARROLL DALJU (Bar No. 266156)
2261 Lava Ridge Court
Roseville, CA 95661
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
BEST, BEST & KRIEGER LLP
HARRIET A. STEINER (Bar No. 109436)
500 Capitol Mall, Suite 1700
Sacramento, CA 95814
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorneys for Defendant, Cross-Defendant, and
Cross-Claimant CITY OF DAVIS

Exempt from Filing Fees Pursuant to
Government Code Section 6103

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES H. LEWIS, et al.,

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Plaintiffs,

Case No: 2:03-CV-02646 WBS AC
STIPULATION FOR DISMISSAL;
[PROPOSED] ORDER

v.
ROBERT D. RUSSELL, et al.,

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Defendants,

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AND RELATED COUNTER AND
CROSSCLAIMS.

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Courtroom: 5
Judge: Honorable William B. Shubb
Pre-Trial Conference: July 21, 2014

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{JHK/00023152. }

STIPULATION FOR DISMISSAL AND [PROPOSED] ORDER
Case No. 2:03-CV-02646-WBS-AC

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IT IS HEREBY STIPULATED, by and between Cross-Claimant the City of Davis

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(“City”) and Cross-Defendant Martin Franchises, Inc. (“Martin”), through their designated

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counsel, that the following cross-claims, which include all of the remaining cross-claims asserted

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by the City in its First Amended Crossclaims in the above-captioned action, shall be dismissed

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with prejudice as against Martin only (and not against any other party, person or entity in the

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action) pursuant to Federal Rule of Civil Procedure 41, and according to the terms and conditions

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in the Settlement Agreement and Mutual Release of Claims between the City and Martin, having

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an Effective Date of November 19, 2012 (“Settlement Agreement”): (1) cost recovery under the

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Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”)
section 107(a); (2) contribution under CERCLA section 113(f); (3) public nuisance under

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COTA COLE LLP
2261 LAVA RIDGE COURT
ROSEVILLE, CALIFORNIA 95661

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California Code of Civil Procedure (“CCP”) section 731; (4) public nuisance under Davis

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Municipal Code section 23.0.0 et seq.; (5) Declaratory relief under CERCLA section 113(g);

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(6) contribution and equitable indemnity; and (7) declaratory relief under 28 U.S.C. section 2201.

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Pursuant to the Settlement Agreement, the City and Martin agree to bear their own costs

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and attorneys’ fees with respect to the dismissed cross-claims and request the Court to maintain

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jurisdiction to enforce the terms of the Settlement Agreement.

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Dated: January 11, 2013

GORDON & REES LLP

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By: /s/Kristin N. Reyna (as authorized on 1/8/13)
KRISTIN N. REYNA
Attorneys for Cross-Defendant
MARTIN FRANCHISES, INC.

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Dated: January 11, 2013

COTA COLE LLP

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By: /s/Jennifer Hartman King
JENNIFER HARTMAN KING
MIRANDA CARROLL DALJU
Attorneys for Defendant, Cross-Defendant, and
Cross-Claimant
CITY OF DAVIS

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{JHK/00023152. }

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STIPULATION FOR DISMISSAL AND [PROPOSED] ORDER
Case No. 2:03-CV-02646-WBS-AC

ORDER

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The Court, having reviewed and considered the Stipulation of Cross-Claimant the City of

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Davis (“City”) and Cross-Defendant Martin Franchises, Inc. (“Martin”) set forth above, and good

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cause appearing therefor:
IT IS HEREBY ORDERED that each of the remaining cross-claims asserted by the City

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in its First Amended Crossclaims in Lewis et al. v. Russell et al., United States District Court,

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Eastern District of California, Case No. 2:03-CV-02646 WBS AC, is dismissed with prejudice as

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against Martin only (and not against any other party, person or entity in the action), pursuant to

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Federal Rule of Civil Procedure 41, and according to the terms and conditions in the Settlement
Agreement and Mutual Release of Claims between the City and Martin, having an Effective Date

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COTA COLE LLP
2261 LAVA RIDGE COURT
ROSEVILLE, CALIFORNIA 95661

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of November 19, 2012 (“Settlement Agreement”): (1) cost recovery under the Comprehensive

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Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) section 107(a);

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(2) contribution under CERCLA section 113(f); (3) public nuisance under California Code of

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Civil Procedure (“CCP”) section 731; (4) public nuisance under Davis Municipal Code

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section 23.0.0 et seq.; (5) declaratory relief under CERCLA section 113(g); (6) contribution and

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equitable indemnity; and (7) declaratory relief under 28 U.S.C. section 2201.
IT IS FURTHER HEREBY ORDERED that the Court maintains jurisdiction to enforce

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the terms of the Settlement Agreement.
IT IS FURTHER HEREBY ORDERED that the City and Martin shall bear their own

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costs and attorneys’ fees with respect to the dismissed cross-claims, as provided in the Settlement

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Agreement.

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IT IS SO ORDERED.

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Dated: January 11, 2013
DEAC_Signature-END:

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STIPULATION FOR DISMISSAL AND [PROPOSED] ORDER
Case No. 2:03-CV-02646-WBS-AC

CERTIFICATE OF SERVICE

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I, Christie Ensley, declare that I am a resident of the State of California and over
the age of eighteen years, and not a party to the within action. My business address is Cota Cole
LLP, 2261 Lava Ridge Court, Roseville, CA 95661. On January 11, 2013, I served the within
document(s):
•

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by placing the document(s) listed above in a sealed envelope with postage thereon fully
prepaid, in the United States mail at Roseville, California, addressed as set forth below:

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Jung K. Seo
3539 Bradshaw Road, Suite B-265
Sacramento, CA 95827

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In Pro Per Defendant

Jung Hang Suh and Soo Jung Suh
1843 Trinity Way
West Sacramento, CA 95691

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COTA COLE LLP
2261 LAVA RIDGE COURT
ROSEVILLE, CALIFORNIA 95661

STIPULATION FOR DISMISSAL; [PROPOSED] ORDER

In Pro Per Defendant

by Federal Court email: by the electronic service procedures of the United States District
Court, Eastern District of California, on all parties not served by mail.

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I am readily familiar with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S. Postal
Service on that same day with postage thereon fully prepaid in the ordinary course of business. I
am aware that on motion of the party served, service is presumed invalid if postal cancellation
date or postage meter date is more than one day after date of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on January 11, 2013, at Roseville, California.

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/s/Christie Ensley
Christie Ensley

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STIPULATION FOR DISMISSAL AND [PROPOSED] ORDER
Case No. 2:03-CV-02646-WBS-AC