Shugert v. USA

Filing 31

AMENDED STIPULATION and ORDER 30 signed by Judge Kimberly J. Mueller on 8/22/12 ORDERING that pursuant to the terms of the parties' stipulation to a compromise settlement this case is dismissed with prejudice.(Matson, R)

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BENJAMIN B. WAGNER
United States Attorney
EDWARD A. OLSEN, CSBN 214150
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, California 95814
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for the United States of America

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL SHUGERT,

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Plaintiff,

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v.

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CASE NO. 2:10-CV-01679 KJM EFB
AMENDED STIPULATION AND ORDER
APPROVING COMPROMISE
SETTLEMENT AND DISMISSING
ACTION WITH PREJUDICE

UNITED STATES OF AMERICA,

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Defendant.

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IT IS HEREBY STIPULATED by and between Plaintiff Michael Shugert and the
United States of America, by and through their respective attorneys, as follows:
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The parties do hereby agree to settle and compromise the above-entitled action and

dismiss the action with prejudice under the terms and conditions set forth herein.
2.

The United States of America agrees to pay to Plaintiff Michael Shugert the sum of One

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Hundred and Fifty Thousand Dollars and no cents ($150,000.00), which sum shall be in full settlement

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and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and

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nature, arising from the subject matter that gave rise to the above-captioned lawsuit.

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3.

Plaintiff hereby releases and discharges the United States of America and all of its

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agencies, past and present officials, agents, employees, attorneys, insurers, their successors and assigns,

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including any physicians associated with the Department of Veterans Affairs who treated and/or
STIPULATION AND ORDER APPROVING
COMPROMISE SETTLEMENT AND DISMISSING CASE

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diagnosed the plaintiff concerning his medical condition that gave rise to the above-captioned case,

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from any and all obligations, damages, liabilities, actions, causes of action, claims and demands of any

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kind and nature whatsoever, whether suspected or unsuspected, foreseen or unforeseen, known or

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unknown, at law or in equity, arising out of the allegations set forth in Plaintiff’s Complaint.

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4.

This stipulation for compromise settlement is not, and is in no way intended to be, and

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should not be construed as, an admission of liability or fault on the part of the United States of

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America, the United States Department of Veterans Affairs, or their past or present officials, agents,

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employees, attorney, insurers, or servants, including any physicians associated with the Department of

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Veterans Affairs who treated and/or diagnosed the plaintiff concerning his medical condition that gave

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rise to the above-captioned case, and it is specifically denied that they are liable to Plaintiff. This

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stipulation for compromise settlement is entered into by the parties for the purpose of compromising

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disputed claims under the Federal Tort Claims Act and avoiding the expenses and risks of litigation.

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5.

This Agreement may be pled as a full and complete defense to any subsequent action or

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other proceeding involving any person or party which arises out of the claims released and discharged

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by the Agreement.

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6.

It is also agreed, by and among the parties, that the settlement amount of One Hundred

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and Fifty Thousand Dollars and no cents ($150,000.00) to Michael Shugert represents the entire

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amount of the compromise settlement and that the respective parties will each bear their own costs,

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fees, and expenses and that any attorneys' fees owed by Plaintiff will be paid out of the settlement

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amount and not in addition thereto.

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7.

It is also understood by and among the parties that, pursuant to Title 28, the United

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States Code, Section 2678, attorneys’ fees for services rendered in connection with this action shall not

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exceed 25 percent of the amount of the compromise settlement.

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8.

Payment of the settlement amount will be made by a check drawn on the United States

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Treasury Department for One Hundred and Fifty Thousand Dollars and no cents ($150,000.00) and

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made payable to Conal Doyle and Michael Shugert. The check will be mailed to the following address:

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Conal Doyle
WILLOUGBY DOYLE LLP
11755 Wilshire Blvd., Suite 1300
Los Angeles, CA 90025
STIPULATION AND ORDER APPROVING
COMPROMISE SETTLEMENT AND DISMISSING CASE

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9.

Plaintiff and his attorney are responsible for payment of any taxes that may be due on

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the settlement proceeds and the United States of America makes no representation as to any tax

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consequences or liabilities Plaintiff and his attorney may incur as a result of this settlement. If any

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withholding or income tax liability is imposed upon Plaintiff based on payment of the settlement sum

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received herein, Plaintiff shall be solely responsible for paying any such determined liability from any

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government agency thereof. Plaintiff will indemnify and hold harmless Defendant from any liability it

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incurs from any government agency arising out of any failure by Plaintiff to pay for any liability he

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might incur from any government agency.

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10.

Plaintiff has been informed that payment may take ninety days or more to process, but

Defendant agrees to make good faith efforts to expeditiously process said payment.
11.

The parties agree that should any dispute arise with respect to the implementation of the

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terms of this Agreement, Plaintiff shall not seek to rescind the Agreement and pursue his original

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causes of action. Plaintiff’s sole remedy in such a dispute is an action to enforce the Agreement in

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district court. The parties agree that the district court will retain jurisdiction over this matter for the

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purposes of resolving any dispute alleging a breach of this Agreement.

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12.

The provisions of California Civil Code Section 1542 are set forth below:

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"A general release does not extend 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."

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Plaintiff having been apprised of the statutory language of California Civil Code Section 1542

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by his attorney, and fully understanding the same, nevertheless elects to waive the benefits of any and

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all rights he may have pursuant to the provision of that statute and any similar provision of federal law.

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Plaintiff understands that, if the facts concerning Plaintiff’s injuries and the liability of the government

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for damages pertaining thereto are found hereinafter to be other than or different from the facts now

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believed by them to be true, the Agreement shall be and remain effective notwithstanding such material

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difference.

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13.

The parties agree that this Stipulation for Compromise Settlement and Dismissal,

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including all the terms and conditions of this compromise settlement and any additional agreements

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relating thereto, may be made public in their entirety, and plaintiff expressly consents to such release
STIPULATION AND ORDER APPROVING
COMPROMISE SETTLEMENT AND DISMISSING CASE

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and disclosure pursuant to 5 U.S.C. § 552a(b).
14.

This instrument shall constitute the entire Agreement between the parties, and it is

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expressly understood and agreed that the Agreement has been freely and voluntarily entered into by the

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parties hereto with the advice of counsel, who have explained the legal effect of this Agreement. The

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parties further acknowledge that no warranties or representations have been made on any subject other

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than as set forth in this Agreement. This Agreement may not be altered, modified or otherwise changed

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in any respect except by writing, duly executed by all of the parties or their authorized representatives.

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15.

If any provision of this Agreement is determined to be invalid, illegal, or

unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.

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Dated: August 3, 2012

/s/ Michael Shugert
MICHAEL SHUGERT
Plaintiff

Dated: August 3, 2012

/s/ Conal Doyle
CONAL DOYLE
Willoughby Doyle LLP
Attorney for Plaintiff

Dated: August 13, 2012

BENJAMIN B. WAGNER
United States Attorney

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/s/ Edward A. Olsen
EDWARD A. OLSEN
Assistant United States Attorney

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ORDER

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Pursuant to the terms of the parties’ stipulation to a compromise settlement and pursuant to Fed.

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R. Civ. P. 41(a)(1), IT IS HEREBY ORDERED THAT the above-captioned case is dismissed with

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prejudice.

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Dated: August 22, 2012.

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UNITED STATES DISTRICT JUDGE

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STIPULATION AND ORDER APPROVING
COMPROMISE SETTLEMENT AND DISMISSING CASE

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