Middleton v. United States of America
Filing
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STIPULATION and ORDER APPROVING COMPROMISE SETTLEMENT AND DISMISSING ACTION WITH PREJUDICE signed by Judge John A. Mendez on 1/18/13. (Kaminski, H)
1 BENJAMIN B. WAGNER
United States Attorney
2 CHI SOO KIM
Assistant United States Attorney
3 501 I Street, Suite 10-100
Sacramento, CA 95814
4 Telephone: (916) 554-2736
Facsimile: (916) 554-2900
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6 Attorneys for Defendant
United States of America
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IN THE UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY JAMES MIDDLETON,
Plaintiff,
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v.
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CASE NO. 2:12-CV-02096 JAM-AC
STIPULATION AND ORDER APPROVING
COMPROMISE SETTLEMENT AND
DISMISSING ACTION WITH PREJUDICE
UNITED STATES OF AMERICA,
Defendant.
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It is hereby stipulated by and between Plaintiff Anthony James Middleton and Defendant United
18 States of America, by and through their respective attorneys, as follows:
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1.
The parties do hereby agree 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 Settlement Agreement.
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2.
The United States of America agrees to pay the sum of $ 34,000.00, which
23 sum shall be in full settlement and satisfaction of any and all claims, demands, rights, and causes of
24 action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown,
25 foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof,
26 resulting, and to result, from the subject matter of this settlement, including any claims for wrongful
27 death, for which Plaintiff or his guardians, heirs, executors, administrators, or assigns, and each of them,
28 now have or may hereafter acquire against the United States of America, its agents, servants, and
STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT AND
DISMISSING ACTION WITH PREJUDICE - Middleton v. U.S., No. 12-02096 JAM-AC
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1 employees.
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3.
Plaintiff and his guardians, heirs, executors, administrators or assigns hereby agree to
3 accept the sums set forth in this Stipulation of Compromise Settlement in full settlement, satisfaction,
4 and release of any and all claims, demands, rights, and causes of action of whatsoever kind and nature,
5 including claims for wrongful death, arising from, and by reason of any and all known and unknown,
6 foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof
7 which they may have or hereafter acquire against the United States of America, its agents, servants and
8 employees on account of the same subject matter that gave rise to the above-captioned action, including
9 any future claim or lawsuit of any kind or type whatsoever, whether known or unknown, and whether
10 for compensatory or exemplary damages. Plaintiff and his guardians, heirs, executors, administrators or
11 assigns further agree to reimburse, indemnify and hold harmless the United States of America, its
12 agents, servants, and employees from and against any and all such causes of action, claims, liens, rights,
13 or subrogated or contribution interests incident to or resulting from further litigation or the prosecution
14 of claims by Plaintiff or his guardians, heirs, executors, administrators or assigns against any third party
15 or against the United States, including claims for wrongful death.
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4.
Plaintiff expressly waives any rights or benefits available pursuant to Section 1542 of the
17 Civil Code of the State of California, which provides as follows:
“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.”
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The parties understand and agree that this Stipulation of Compromise Settlement shall act as a release of
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future claims that may arise from the subject matter of the above-captioned action, whether such claims
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are currently known, unknown, foreseen or unforeseen. The parties understand and acknowledge the
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significance and consequences of the specific waiver of section 1542 and hereby assume full
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responsibility for any injury, loss, damage or liability that may be incurred hereafter by reason of or
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related to the subject matter that gave rise to this action.
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5.
This Stipulation of Compromise Settlement is not, 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, its agents,
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STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT AND
DISMISSING ACTION WITH PREJUDICE - Middleton v. U.S., No. 12-02096 JAM-AC
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1 servants, or employees, and it is specifically denied that they are liable to Plaintiff. This settlement is
2 entered into by all parties for the purpose of compromising disputed claims under the Federal Tort
3 Claims Act and avoiding the expenses and risks of further litigation.
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6.
It is also agreed, by and among the parties, that the respective parties will each bear their
5 own costs, fees, and expenses and that any attorney's fees owed by Plaintiff will be paid out of the
6 settlement 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, United States
8 Code, Section 2678, attorney's fees for services rendered in connection with this action shall not exceed
9 25 per centum of the amount of the compromise settlement.
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8.
The persons signing this Stipulation of Compromise Settlement warrant and represent
11 that they possess full authority to bind the persons on whose behalf they are signing to the terms of the
12 settlement. In the event any plaintiff is a minor or a legally incompetent adult, Plaintiff must obtain
13 Court approval of the settlement at his expense. Plaintiff agrees to obtain such approval in a timely
14 manner: time being of the essence. Plaintiff further agrees that the United States may void this
15 settlement at its option in the event such approval is not obtained in a timely manner. In the event
16 Plaintiff fails to obtain such Court approval, the entire Stipulation of Compromise Settlement and
17 Release and the compromise settlement are null and void.
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9.
Payment of the settlement amount will be made by check drawn on the Treasury of the
19 United States for $ 34,000.00, and made payable to Anthony James Middleton, Plaintiff, and
20 Robert J. Drabant, Plaintiff's attorney. The check will be mailed to Plaintiff's attorney at the following
21 address: Law Office of Robert J. Drabant, 1420 River Park Drive, #230, Sacramento, CA 95815.
22 Plaintiff's attorney agrees to distribute the settlement proceeds to Plaintiff, and to obtain a dismissal of
23 the above-captioned action with prejudice, with each party bearing its own fees, costs, and expenses.
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10.
The parties agree that this Stipulation of Compromise Settlement and Release, including
25 all the terms and conditions of this compromise settlement and any additional agreements relating
26 thereto, may be made public in their entirety, and Plaintiff expressly consents to such release and
27 disclosure pursuant to 5 U.S.C. § 552a(b).
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11.
It is contemplated that this Stipulation may be executed in several counterparts, with a
STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT AND
DISMISSING ACTION WITH PREJUDICE - Middleton v. U.S., No. 12-02096 JAM-AC
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1 separate signature page for each party. All such counterparts and signature pages, together, shall be
2 deemed to be one document.
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12.
Upon approval by the Court as provided below, Plaintiff’s action against the United
4 States is hereby DISMISSED WITH PREJUDICE in its entirety and the Clerk of the Court is requested
5 to enter this dismissal and release in the official docket and to close the case.
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13.
Notwithstanding the entry of a dismissal herein, the parties agree that that the Honorable
7 John A. Mendez shall retain jurisdiction to enforce the terms of this compromise settlement.
Respectfully submitted,
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9 Dated: January 17, 2013
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/s/ Anthony James Middleton
ANTHONY JAMES MIDDLETON
Plaintiff
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13 Dated: January 17, 2013
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LAW OFFICE OF ROBERT J. DRABANT
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By:
/s/ Robert J. Drabant
ROBERT J. DRABANT
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Attorney for Plaintiff Anthony James Middleton
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18 Dated: January 17, 2013
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BENJAMIN B. WAGNER
United States Attorney
/s/ Chi Soo Kim
CHI SOO KIM
Assistant United States Attorney
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ORDER
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23 IT IS SO ORDERED.
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DATED: ___1/18/2013
/s/ John A. Mendez________________________
JOHN A. MENDEZ
UNITED STATES DISTRICT COURT JUDGE
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STIPULATION AND [PROPOSED] ORDER APPROVING COMPROMISE SETTLEMENT AND
DISMISSING ACTION WITH PREJUDICE - Middleton v. U.S., No. 12-02096 JAM-AC
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