Moulton v. United States

Filing 29

MODIFIED STIPULATION and ORDER 27 signed by District Judge Troy L. Nunley on 5/22/2014 APPROVING compromise settlement and dismissing action with prejudice. (Zignago, K.) Modified on 5/28/2014 (Zignago, K.).

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: [phone]
Facsimile: [phone]
5
6 Attorneys for Defendant United States
7
IN THE UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10
MARY MOULTON,

CASE NO. 2:12-cv-02596 TLN-CMK

11
Plaintiff,
12
v.

MODIFIED STIPULATION AND ORDER
APPROVING COMPROMISE SETTLEMENT
AND DISMISSING ACTION WITH PREJUDICE

13
UNITED STATES OF AMERICA,
14
Defendant.
15
16
It is hereby stipulated by and between Plaintiff Mary Moulton and Defendant United States, by
17
and through their respective attorneys, as follows:
18
1.

The parties do hereby agree to settle and compromise each and every claim of any kind,

19
whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise to the
20
above-captioned action under the terms and conditions set forth in this Settlement Agreement.
21
2.

The United States of America agrees to pay the sum of $62,500.00, which sum shall be in

22
full settlement and satisfaction of any and all claims, demands, rights, and causes of action of
23
whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen
24
and unforeseen bodily and personal injuries, damage to property and the consequences thereof, resulting,
25
and to result, from the subject matter of this settlement, including any claims for wrongful death, for
26
which Plaintiff or her guardians, heirs, executors, administrators, or assigns, and each of them, now have
27
or may hereafter acquire against the United States of America, its agents, servants, and employees.
28

30

STIPULATION AND ORDER APPROVING COMPROMISE SETTLEMENT AND DISMISSING ACTION
WITH PREJUDICE – Moulton v. United States, No. 2:12-cv-02596 TLN-CMK

1

1

3.

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

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

17
18
19

The parties understand and agree that this Stipulation of Compromise Settlement shall act as a release of
20
future claims that may arise from the subject matter of the above-captioned action, whether such claims
21
are currently known, unknown, foreseen or unforeseen. The parties understand and acknowledge the
22
significance and consequences of the specific waiver of section 1542 and hereby assume full
23
responsibility for any injury, loss, damage or liability that may be incurred hereafter by reason of or
24
related to the subject matter that gave rise to this action.
25
5.

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

26
not be construed as, an admission of liability or fault on the part of the United States, its agents,
27
servants, or employees, and it is specifically denied that they are liable to Plaintiff. This settlement is
28

30

STIPULATION AND ORDER APPROVING COMPROMISE SETTLEMENT AND DISMISSING ACTION
WITH PREJUDICE – Moulton v. United States, No. 2:12-cv-02596 TLN-CMK

2

1 entered into by all parties for the purpose of compromising disputed claims under the Federal Tort
2 Claims Act and 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 per centum of the amount of the compromise settlement.
9

8.

The persons signing this Settlement Agreement warrant and represent that they possess

10 full authority to bind the persons on whose behalf they are signing to the terms of the settlement. In the
11 event any plaintiff is a minor or a legally incompetent adult, Plaintiff must obtain Court approval of the
12 settlement at her expense. Plaintiff agrees to obtain such approval in a timely manner: time being of the
13 essence. Plaintiff further agrees that the United States may void this settlement at its option in the event
14 such approval is not obtained in a timely manner. In the event Plaintiff fails to obtain such Court
15 approval, the entire Stipulation For Compromise Settlement And Release and the compromise
16 settlement are null and void.
17

9.

Payment of the settlement amount will be made by government wire transfer as per the

18 following:
A.
B.
C.
D.
E.
F.

19
20
21
22

Name of Bank: Wells Fargo
Street Address of Bank: 355 Memorial Way
City, State, and Zip Code of Bank: Chico, CA 95926
Routing Number: 121000248
Name of Account: Law Office of Robert L. Davis
Account Number: 121042882:5942192377

23 Plaintiff’s attorney agrees to distribute the settlement proceeds among the plaintiffs, and to obtain a
24 dismissal of the above-captioned action with prejudice, with each party bearing its own fees, costs, and
25 expenses.
26

10.

The parties agree that this Stipulation for Compromise Settlement and Release, including

27 all the terms and conditions of this compromise settlement and any additional agreements relating
28 thereto, may be made public in their entirety, and Plaintiff expressly consents to such release and

30

STIPULATION AND ORDER APPROVING COMPROMISE SETTLEMENT AND DISMISSING ACTION
WITH PREJUDICE – Moulton v. United States, No. 2:12-cv-02596 TLN-CMK

3

1 disclosure pursuant to 5 U.S.C. § 552a(b).
2

11.

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

3 separate signature page for each party. All such counterparts and signature pages, together, shall be
4 deemed to be one document.
5

12.

Upon approval by the Court as provided below, Plaintiff’s action against the United

6 States is hereby DISMISSED WITH PREJUDICE in its entirety and the Clerk of the Court is requested
7 to enter this dismissal and release in the official docket and to close the case.
8

13.

Notwithstanding the entry of a dismissal herein, the parties agree that that the Honorable

9 Troy L. Nunley shall retain jurisdiction to enforce the terms of this compromise settlement.
10
Respectfully submitted,
11
Dated: May 19, 2014
12
/s/ Mary Moulton
MARY MOULTON
Plaintiff

13
14
15

Dated: May 19, 2014

16

/s/ Robert L. Davis
ROBERT L. DAVIS
Attorney for Plaintiff Mary Moulton

17
18
19
20

Dated: May 19, 2014

21

BENJAMIN B. WAGNER
United States Attorney
/s/ Chi Soo Kim
CHI SOO KIM
Assistant United States Attorney

22
23

ORDER

24
25

IT IS SO ORDERED.

26 Dated: May 22, 2014
27
28

30

Troy L. Nunley
United States District Judge
STIPULATION AND ORDER APPROVING COMPROMISE SETTLEMENT AND DISMISSING ACTION
WITH PREJUDICE – Moulton v. United States, No. 2:12-cv-02596 TLN-CMK

4