McCliss et al v. Department of Veterans Affairs et al

Filing 85

ORDER APPROVING COMPROMISE SETTLEMENT AND CONSENT DECREE signed by Judge Morrison C. England, Jr on 2/3/10. Civil Case Terminated.(Kaminski, H)

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DAVID P. MASTAGNI (SBN 57721) ANTHONY P. DONOGHUE (SBN 254113) MASTAGNI, HOLSTEDT, AMICK, MILLER & JOHNSEN A Professional Corporation 1912 I Street Sacramento, California 95811 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs MARJORIE McCLISS and MARK McCLISS STEPHEN G. PONGRATZ (SBN 131276) BEYER, PONGRATZ & ROSEN 3230 Ramos Circle Sacramento, California 95827 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant JIMMIE EARL WARD IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

MARJORIE McCLISS and MARK McCLISS, Plaintiffs, v. JIMMIE EARL WARD; ERIC K. SHINSEKI, Secretary of Veterans Affairs; the UNITED STATES OF AMERICA; and DOES 1 through 100, inclusive, Defendants.

CASE NO. 2:07-cv-001154-MCE-KJM STIPULATION FOR COMPROMISE SETTLEMENT; CONSENT DECREE; AND ORDER

22 23 24 25 26 27 28 It is hereby stipulated by and between the following parties only: Plaintiffs MARJORIE McCLISS and MARK McCLISS (hereinafter referred to as "PLAINTIFFS") and Defendant JIMMIE EARL WARD (hereinafter referred to as "DEFENDANT WARD") as follows: 1. Pursuant to this STIPULATION FOR COMPROMISE SETTLEMENT and CONSENT

DECREE (hereinafter referred to as "STIPULATED SETTLEMENT AGREEMENT"), PLAINTIFFS 1

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and DEFENDANT WARD, who are the only parties to this STIPULATED SETTLEMENT AGREEMENT, hereby agree to resolve and settle the disputes between them arising from or relating to, directly or indirectly, the acts or omissions that are alleged by PLAINTIFFS in their complaints in the United States District Court for the Eastern District of California (Case No. 2:07-cv-00154-MCEKJM), against DEFENDANT WARD and to further memorialize herein the terms of such resolution and settlement that was reached by and between the parties. 2. DEFENDANT WARD agrees to pay to PLAINTIFFS the sum of $11,000.00 in full

settlement and satisfaction of any and all claims, demands, rights, and causes of action that PLAINTIFFS have against DEFENDANT WARD only, arising from and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof, which have resulted or may in the future result from the acts or omissions that are alleged by PLAINTIFFS in their complaint in the above-captioned action, and which is the subject matter of this action. 3. PLAINTIFFS do hereby waive to the fullest extent possible under law any and all rights

under Section 1542 of the California Code of Civil Procedure, which reads as follows: A general release does not extent to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 4. PLAINTIFFS warrant that they are the sole and lawful owner of all rights, title, and

interests in and to every claim and other matter which they purport to release herein, and that they have not heretofore assigned or transferred, or purported or attempted to assign or transfer to any person or entity any claims or other matters herein released. 5. This STIPULATED SETTLEMENT AGREEMENT is not, is in no way intended to be,

and should not be construed as, an admission of liability or fault on the part of DEFENDANT WARD . 6. It is also agreed, by and among the parties, that the amount specified in Paragraph 2 is

the total amount of the compromise settlement, and that the all parties agree to bear their own attorney's fees, costs, and expenses incurred in the above-captioned action and in any associated Equal

2

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Employment Opportunity Commission, administrative or tort claims proceedings with the Department of Veterans Affairs, and release each other from any claims for attorney's fees, costs, or expenses. 7. The persons signing this STIPULATED SETTLEMENT AGREEMENT warrant and

represent that they possess full authority to bind the persons on whose behalf they are signing to the terms of this STIPULATED SETTLEMENT AGREEMENT. 8. Payment of the settlement amount by DEFENDANT WARD shall be made by pursuant

to the following terms: a. On or before February 26, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). b. On or before March 26, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). c. On or before April 30, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). d. On or before May 28, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). e. On or before June 25, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). f. On or before July 30, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). g. On or before August 27, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). 3

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h.

On or before September 24, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00).

i.

On or before October 29, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00).

j.

On or before November 26, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00).

k.

On or before December 31, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00).

l.

Said payments shall be deemed late when DEFENDANT WARD fails to either personally deliver or postmark by U.S. Mail the payment as of the date listed for the respective payments. In the event of late payment: i. ii. DEFENDANT WARD shall be deemed in default; The entire remaining balance owed shall be deemed accelerated and all due and payable; iii. iv. A 10% simple interest shall apply on all outstanding principle still owed; and PLAINTIFFS shall be entitled to reimbursement of attorney's fees, costs and expenses incurred while enforcing the terms of this STIPULATED SETTLEMENT AGREEMENT and/or the corresponding ORDER.

9.

PLAINTIFFS shall timely file a notice of satisfaction of judgment upon satisfaction of

payment pursuant to the terms included in paragraph 8. 10. The parties understand, acknowledge, agree and consent that this Court shall retain

jurisdiction in this matter until such time as the terms of the settlement, as described herein, are satisfied. 11. PLAINTIFFS authorize and consent to DEFENDANT WARD filing this STIPULATED 4

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SETTLEMENT AGREEMENT and a request for dismissal of the above-captioned action with prejudice pursuant to the terms included in paragraph 8, with such stipulation and request requiring each party to bear its own fees, costs, and expenses. 12. DEFENDANT WARD acknowledges and agrees that the debt incurred herein shall be

non-dischargeable in any bankruptcy proceeding. 13. The parties understand, acknowledge and agree that this STIPULATED SETTLEMENT

AGREEMENT contains the entire agreement between the parties pertaining to the compromise and settlement of all claims referenced herein, and that no promise or representation not contained in this STIPULATED SETTLEMENT AGREEMENT has been made to PLAINTIFFS. This STIPULATED SETTLEMENT AGREEMENT is executed without reliance on any representation as to tax consequences, and PLAINTIFFS are responsible for the payment of all taxes that may be associated with the settlement payment. 14. Any of the parties to this STIPULATED SETTLEMENT AGREEMENT, namely

MARJORIE McCLISS, MARK McCLISS and DEFENDANT WARD, may file this STIPULATION FOR COMPROMISE SETTLEMENT; CONSENT DECREE AND [PROPOSED] ORDER in this or any other action or proceeding to enforce the terms and conditions of this STIPULATED SETTLEMENT AGREEMENT. In any action or proceeding to enforce the terms or conditions of this STIPULATED SETTLEMENT AGREEMENT, the prevailing party or parties shall be entitled to an award of their reasonable attorneys' fees, litigation expenses, and costs. 15. It is contemplated that this STIPULATED SETTLEMENT AGREEMENT may be

executed in several counterparts, with a separate signature page for each party. All such counterparts and signature pages, together, shall be deemed to be one document. IT IS SO STIPULATED AND AGREED. DATED: _____________, 2010 BEYER, PONGRATZ & ROSEN

25 26 27 28 By: STEPHEN G. PONGRATZ Attorneys for Jimmie Earl Ward 5

1 2 DATED: _____________, 2010 3 4 5 6 7 By: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DATED: _____________, 2010 MARK McCLISS DATED: _____________, 2010 MARJORIE McCLISS ANTHONY P. DONOGHUE Attorneys for Marjorie and Mark McCliss DATED: _____________, 2010 MASTAGNI, HOLSTEDT, AMICK, MILLER & JOHNSEN, APC JIMMIE EARL WARD

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ORDER APPROVING COMPROMISE SETTLEMENT AND CONSENT DECREE Having read the above stipulation and consent decree of the parties and good cause appearing

3 therefrom, IT IS HEREBY ORDERED that this case is settled as to Defendant JIMMIE EARL WARD 4 ("DEFENDANT WARD"). Although the Court will retain jurisdiction in this matter until such time as 5 the terms of the settlement, as described herein, are satisfied, the Clerk of Court is nonetheless directed 6 to close the file at this time. 7 DEFENDANT WARD shall pay to PLAINTIFFS the sum of $11,000.00 in full settlement and 8 satisfaction of any and all claims, demands, rights, and causes of action of that PLAINTIFFS have 9 against DEFENDANT WARD. Payment of the settlement amount by DEFENDANT WARD shall be 10 made as follows: 11 a. 12 Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I 13 Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). 14 b. 15 Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I 16 Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). 17 c. 18 Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I 19 Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). 20 d. 21 Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I 22 Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). 23 e. 24 Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I 25 Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). 26 f. 27 Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I 28 7 On or before July 30, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, On or before June 25, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, On or before May 28, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, On or before April 30, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, On or before March 26, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, On or before February 26, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss,

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Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). On or before August 27, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). On or before September 24, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). On or before October 29, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). On or before November 26, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). On or before December 31, 2010, DEFENDANT WARD shall pay to "Marjorie McCliss, Mark McCliss and Mastagni, Holdstedt, Amick, Miller & Johnsen, APC" at 1912 I Street, Sacramento, CA 95811, the sum of one thousand dollars ($1,000.00). Said payments shall be deemed late when DEFENDANT WARD fails to either personally deliver or postmark by U.S. Mail the payment as of the date listed for the respective payments. In the event of late payment: i. ii. DEFENDANT WARD shall be deemed in default; The entire remaining balance owed shall be deemed accelerated and all due and payable; iii. iv. A 10% simple interest shall apply on all outstanding principle still owed; and PLAINTIFFS shall be entitled to reimbursement of attorney's fees, costs and expenses incurred while enforcing the terms of this STIPULATED SETTLEMENT AGREEMENT and/or the corresponding ORDER.

PLAINTIFFS shall timely file a notice of satisfaction of judgment upon satisfaction of 8

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payment pursuant to the terms. Failure to comply with this ORDER may be grounds for the imposition of sanctions on any and all counsel as well as any party or parties who cause non-compliance with this ORDER. IT IS SO ORDERED. Dated: February 3, 2010 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE

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