Lemire et al v. State of California et al

Filing 59

STIPULATION and ORDER signed by Judge Garland E. Burrell, Jr on 11/25/2009 ORDERING that pltfs are allowed to file Fourth Amended Complaint within 3 days of this Order; dfts excused from responding to Third Amended Complaint and shall file response to Fourth Amended Complaint pursuant to Federal Rule of Civil Procedure 15; dfts Haviland, Cate, Gregory Hill, K. Harris, Daniel E. Thor, N. Soliz, and R. La Bonte are dismissed with prejudice. (Suttles, J)

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Geri Lynn Green, (State Bar No. 127709) LAW OFFICES OF GERI LYNN GREENLC A Law Corporation 155 Montgomery Street, Suite #901 San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Attorneys for Plaintiffs SHERIE LEMIRE individually and as personal representative for the ESTATE OF ROBERT ST. JOVITE; GERARD CHARLES ST. JOVITE and NICOLE ST. JOVITE EDMUND G. BROWN JR. Attorney General of the State of California DAVID A. CARRASCO Supervising Deputy Attorney General DIANA ESQUIVEL, State Bar No. 202954 Deputy Attorney General 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Defendants Alcaraz, Cahoon, California Department of Corrections and Rehabilitation, Carey, Chua, Dusay, Hak, Hicks, Holliday, LaBonte, Martinez, Nuehring, Noriega, Orrick, Schwarzenegger, Sisto, Soliz, Tilton, Traquina, Wade, and Wong IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION SHERIE LEMIRE individually and as personal representative for the ESTATE OF ROBERT ST. JOVITE; GERARD CHARLES ST. JOVITE and NICOLE ST. JOVITE Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) Case No. 2:08-CV-00455-GEB-EFB STIPULATION AND ORDER TO FILE FOURTH AMENDED COMPLAINT

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vs. ARNOLD SCHWARZENEGGER, et al. Defendants. _______________________________________

Case No. 2:08-CV-00455-GEB-EFB STIPULATION AND [PROPOSED] ORDER TO FILE FOURTH AMENDED COMPLAINT

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Pursuant to Local Rule 83-143 the parties stipulate as follows: Pursuant to Stipulation, Plaintiffs amended their complaint on January 1, 2009. Since that

3 4 time, Plaintiffs have served all those Defendants they have named except Defendants Thor, Hill,

5 and Harris. On or about October 21, 2009, the parties stipulated to allow Plaintiffs to file the 6 Third Amended Complaint which did not seek to add any new defendants, merely to clarify the 7 8 the Third Amended Complaint on October 27, 2009. The Court ordered Defendants to respond to 9 10 11 the amended complaint by November 26, 2009. In a meet and confer discussion with defense counsel, it became apparent that Plaintiff had, alleged involvement of the already named defendants. The Court so ordered, and Plaintiffs filed

12 through computer and operator error, inadvertently and mistakenly e-filed the wrong complaint, 13 14 to the filing of the attached Fourth Amended Complaint to correct these errors. 15 16 Concomitant with this filing, the parties agree to the dismissal of Defendants Haviland, which added parties not intended to be added and deleted others. The parties therefore stipulate

17 Cate, Hill, Harris, Thor, Soliz and LaBonte and all allegations and claims against them. The 18 parties further agree and stipulate that these Defendants will seek no costs or attorney's fees and 19 20 21 The proposed Fourth Amended Complaint re-inserts the erroneously removed Defendant that no costs or fees will be awarded.

22 then-Warden D. K. Sisto as a defendant, who had already appeared in this action, and defense 23 counsel agrees to continue to accept service on his behalf. 24 25 26 27 28 /// The parties further agree that Defendants will be excused from responding to the Third Amended Complaint, and Defendants will respond to the Fourth Amended Complaint within the Accordingly, the parties agree to allow Plaintiffs to file the attached Fourth Amended Complaint in order to properly clarify the parties and remedy the errors.

1 time provided under Federal Rule of Civil Procedure 15. 2 3 4 Dated: November 19, 2009 5 6 7 8 9 10 11 12 13 14 15 16 17 excused from responding to the Third Amended Complaint and shall file their response to the Dated: November 19, 2009 OFFICE OF THE ATTORNEY GENERAL By: /S/ Diana Esquivel Attorney for Defendants ORDER Plaintiffs are hereby allowed to file the Fourth Amended Complaint and that amended complaint must be filed no later than three days from the date of this order. Defendants are LAW OFFICES OF GERI LYNN GREENLC By: /S/ Geri Lynn Green Geri Lynn Green (State Bar No. 127709) Attorneys for Plaintiffs Respectfully submitted, IT IS SO STIPULATED.

18 Fourth Amended Complaint within the time specified under Federal Rule of Civil Procedure 15. 19 Defendants Haviland, Cate, Hill, Harris, Thor, Soliz and LaBonte are hereby dismissed with

20 prejudice, and each party shall bear its own costs and fees. 21 22 23 Dated: November 25, 2009 24 25 26 27 28 Case No. 2:08-CV-00455-GEB-EFB STIPULATION AND [PROPOSED] ORDER TO FILE FOURTH AMENDED COMPLAINT GARLAND E. BURRELL, JR. United States District Judge IT IS SO ORDERED.