Helm v. United States Postal Service et al

Filing 110

ORDER signed by Chief Judge Morrison C. England, Jr. on 5/8/2015 DISMISSING this action with prejudice pursuant to the Stipulation for Compromise Settlement and Release of Federal Tort Claims Act Claims pursuant to 28 U.S.C. § 2677. CASE CLOSED. (Michel, G.)

1 BENJAMIN B. WAGNER
United States Attorney
2 LYNN TRINKA ERNCE
Assistant United States Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: [phone]
Facsimile: [phone]
5
6 Attorneys for United States of America
7
8

IN THE UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JOSEPH HELM,

12
13
14

Plaintiff,

STIPULATION FOR COMPROMISE
SETTLEMENT AND RELEASE OF
FEDERAL TORT CLAIMS ACT CLAIMS
PURSUANT TO 28 U.S.C. 2677

v.
UNITED STATES OF AMERICA,

15
16

CASE NO. 2:11-cv-01703 MCE EFB

Defendant.
It is hereby stipulated by and between the undersigned plaintiff (meaning any person, other than

17 the defendant and the attorneys, signing this agreement, whether or not a party to this civil action), and
18 the United States of America (“United States”), by and through their respective attorneys, as follows:
19

1.

Plaintiff hereby agrees to settle and compromise each and every claim of any kind,

20 whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise to the
21 above-captioned action, under the terms and conditions set forth in this Stipulation.
22

2.

The United States of America agrees to pay the sum of $6,000.00,* which sum shall be in

23 full settlement and satisfaction of any and all claims, demands, rights, and causes of action of
24 whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen
25 and unforeseen bodily and personal injuries, damage to property and the consequences thereof, resulting,
26 and to result, from the subject matter of this action, including any future claims for wrongful death, for
27 which plaintiff or his guardians, heirs, executors, administrators, or assigns, and each of them, now have
28 or may hereafter acquire against the United States, its agents, servants, and employees.
29

Stipulation For Compromise Settlement
And Release Of Federal Tort Claims Act Claim

1

*Six thousand dollars
and 00/100-----------

1

3.

Plaintiff and his guardians, heirs, executors, administrators or assigns hereby agree to

2 accept the sum set forth in this Stipulation in full settlement, satisfaction, and release of any and all
3 claims, demands, rights, and causes of action of whatsoever kind and nature, including claims for
4 wrongful death, arising from, and by reason of, any and all known and unknown, foreseen and
5 unforeseen bodily and personal injuries, damage to property and the consequences thereof, which they
6 may have or hereafter acquire against the United States of America, its agents, servants, and employees
7 on account of the same subject matter that gave rise to the above-captioned action, including any future
8 claim or lawsuit of any kind or type whatsoever, whether known or unknown, and whether for
9 compensatory or exemplary damages. Plaintiff and his guardians, heirs, executors, administrators, or
10 assigns further agree to reimburse, indemnify and hold harmless the United States of America, its
11 agents, servants, and employees from and against any and all causes of action, claims, liens, rights, or
12 subrogated or contribution interests incident to or resulting from further litigation or the prosecution of
13 claims by Plaintiff or his guardians, heirs, executors, administrators, or assigns against any third party or
14 against the United States of America, including claims for wrongful death.
15

4.

Plaintiff expressly waives any rights or benefits available pursuant to Section 1542 of the

16 Civil Code of the State of California, which provides as follows:
17

A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of executing
the release, which if known by him or her must have materially
affected his or her settlement with the debtor.

18
19

20 The parties understand and agree that this Stipulation shall act as a release of future claims that may
21 arise from the subject matter of the above-captioned action, whether such claims are currently known,
22 unknown, foreseen or unforeseen. The parties understand and acknowledge the significance and
23 consequences of the specific waiver of section 1542 and hereby assume full responsibility for any injury,
24 loss, damage, or liability that may be incurred hereafter by reason of or related to the subject matter that
25 gave rise to this action.
26

5.

This Stipulation is not, is in no way intended to be, and should not be construed as, an

27 admission of liability or fault on the part of the United States of America, its agents, servants, or
28 employees, and it is specifically denied that they are liable to Plaintiff. This settlement is entered into
29

Stipulation For Compromise Settlement
And Release Of Federal Tort Claims Act Claim

2

1 by all parties for the purpose of compromising disputed claims under the Federal Tort Claims Act and
2 avoiding the expenses and risks of further litigation.
3

6.

It is also agreed, by and among the parties, that the respective parties will each bear their

4 own costs, fees, and expenses, and that any attorney’s fees owed by Plaintiff will be paid out of the
5 settlement amount and not in addition thereto.
6

7.

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

7 Code, Section 2678, attorney’s fees for services rendered in connection with this action shall not exceed
8 25% of the amount of the compromise settlement.
9

8.

Payment by the United States will be made by Electronic Funds Transfer through

10 Plaintiff’s attorney’s trust account per the following terms: check payable to Joseph Helm.
11

Name of Bank:

12

Street Address:

13

Routing No.:

14

Account Name:

15

Account No:

16

Plaintiff’s attorney agrees to distribute the settlement proceeds to plaintiff, and to obtain a

17 dismissal of the above-captioned action with prejudice, with each party bearing his or its own fees,
18 costs, and expenses.
19

9.

The persons signing this Stipulation warrant and represent that they possess full authority

20 to bind the persons on whose behalf they are signing to the terms of the Stipulation. In the event any
21 plaintiff is a minor or legally incompetent adult, plaintiffs must obtain court approval of the settlement
22 at their expense. Plaintiff agrees to obtain such approval in a timely manner: time being of the essence.
23 Plaintiff further agrees that the United States of America may void this settlement at its option in the
24 event such approval is not obtained in a timely manner. In the event plaintiff fails to obtain such Court
25 approval, the entire Stipulation and the compromise settlement are null and void.
26

10.

The parties agree that this Stipulation, including all the terms and conditions of this

27 compromise settlement and any additional agreements relating thereto may be made public in their
28 entirety, and plaintiff expressly consents to such release and disclosure pursuant to 5 U.S.C. § 552a(b).
29

Stipulation For Compromise Settlement
And Release Of Federal Tort Claims Act Claim

3

1

11.

It is contemplated that this Stipulation may be executed in several counterparts, with a

2 separate signature page for each party. All such counterparts and signature pages, together, shall be
3 deemed to be one document.
4
5 DATED: April 21, 2015
6

BENJAMIN B. WAGNER
United States Attorney
By:

7

/s/ Lynn Trinka Ernce
LYNN TRINKA ERNCE
Assistant United States Attorney
Attorneys for the United States of America

By:

/s/ Russell A. Robinson
Russell A. Robinson
Attorneys for Plaintiff
JOSEPH HELM

By:

/s/ Joseph Helm
JOSEPH HELM
Plaintiff

8
9
10

DATED: April 21, 2015

11
12
13

DATED: April 21, 2015

14
15
16
17

ORDER
Pursuant to the above stipulation, this action is DISMISSED with prejudice, and the Clerk of

18 the Court is directed to close this case.
19

IT IS SO ORDERED.

20 Dated: May 8, 2015
21
22
23
24
25
26
27
28
29

Stipulation For Compromise Settlement
And Release Of Federal Tort Claims Act Claim

4