Carr v. AutoNation, Inc. et al

Filing 22

STIPULATION and ORDER signed by District Judge John A. Mendez on 9/19/17 ORDERING that Defendants Wayne Huizenga and Jeffrey Davis are DISMISSED without prejudice pursuant to the terms of the foregoing stipulation. (Mena-Sanchez, L)

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Kevin A. James, SBN 285302
Becker & Runkle
263 Main Street, Level 2
Placerville, CA 95667
Email: [e-mail]
Telephone: [phone]
Fax: [phone]

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Attorney for Plaintiff
JAMES CARR

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[continued on next page]

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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JAMES CARR, an individual,
Plaintiff,
vs.
AUTONATION, INC., a Delaware
corporation;
JEFFREY DAVIS, an individual;
WAYNE HUIZENGA, an individual;
LKQ CORPORATION, a Delaware
corporation; and DOES 1-25,
Defendants.

Case No. 2:17-cv-01539-JAM-AC
PARTIES’ STIPULATION OF
DISMISSAL OF DEFENDANTS
HUIZENGA AND DAVIS WITHOUT
PREJUDICE AND AGREEMENT AS
TO TOLLING AND OTHER
TERMS; ORDER

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STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT;
[PROPOSED] ORDER

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Laura K. Christa, SBN 97319
CHRISTA & JACKSON
1901 Avenue of the Stars, Suite 1100
Los Angeles, California 90067-6002
E-mail: [e-mail]
Telephone: [phone]
Attorneys for Defendants
AUTONATION, Inc.
JEFFREY DAVIS
WAYNE HUIZENGA

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Melissa A. Jones, SBN 205576
Matthew Struhar, SBN 293973
STOEL RIVES LLP
500 Capitol Mall, Suite 1600
Sacramento, CA 95814
E-mail: [e-mail]
E-mail: [e-mail]
Telephone: [phone]
Attorneys for Defendants
AUTONATION, Inc.
JEFFREY DAVIS
WAYNE HUIZENGA
Joel W. Rice
James M. Hux, Jr.
FISHER & PHILLIPS, LLP
444 South Flower Street, Suite 1500
Los Angeles, CA 90071
E-mail: [e-mail]
Telephone: [phone]
Attorneys for Defendant
LKQ CORPORATION
PRO HAC VICE
Stanley H. Wakshlag
Jannelle M. Ans
KENNY NACHWALTER, PA
Four Seasons Tower
1441 Brickell Avenue
Suite 1100
Miami, FL 33121
Telephone: [phone]
Attorneys for Defendant
WAYNE HUIZENGA
PRO HAC VICE
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STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT;
[PROPOSED] ORDER

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WHEREAS, Plaintiff James Carr (“Plaintiff”) commenced the above-captioned

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action with the filing of the operative Complaint on June 15, 2017 in the Superior

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Court for the State of California for the County of El Dorado with the following

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named defendants: (1) AutoNation, Inc., a Delaware corporation; (2) Jeffrey Davis, an

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individual; (3) Wayne Huizenga, an individual; and (4) LKQ Corporation, a Delaware

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corporation (collectively, “Defendants,” and, together with Plaintiff, the “Parties”);

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WHEREAS Defendants removed the above-captioned action to this Court on

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July 27, 2017 (hereinafter referred to as the “Action”);
WHEREAS the Parties have engaged in meaningful meet and confer efforts in

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advance of Defendants filing any motions to dismiss or engaging in other early motion

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practice;

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WHEREAS, among the issues discussed in those meet and confer sessions was

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the continued inclusion in this Action of Defendants Huizenga and Davis (the “Tolling

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Defendants”), two individuals domiciled in Florida, in this action and the

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appropriateness of a California forum for a suit involving those two Florida residents;

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WHEREAS, AutoNation, Inc. and LKQ Corporation have indicated a

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willingness to forego all other venue and jurisdictional challenges and enter into the

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following agreement governing tolling and other matters in exchange for Plaintiff’s

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dismissal without prejudice of the Tolling Defendants from this action pursuant to the

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terms of the following agreement (hereinafter referred to as the “Agreement”).

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WHEREAS, without admitting or denying the validity of any challenges the

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Tolling Defendants may make to the Complaint, jurisdiction, or venue, and in an effort

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to narrow the issues at this early stage of the Action, Plaintiff is willing to dismiss the

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Tolling Defendants from this Action without prejudice provided his rights to reinstate,

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join, or otherwise resume this Action or a separate action against the Tolling

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Defendants are in no way prejudiced.

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IT IS HEREBY STIPULATED and AGREED, by and among counsel of record
for Plaintiff and Defendants, that:
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STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT;
[PROPOSED] ORDER

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1.

The Action shall be dismissed, without prejudice, as to the Tolling

Defendants, with each party to bear his own costs and attorneys’ fees.
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Plaintiff reserves the right, in his sole discretion, to amend his Complaint or

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to file a separate complaint against the Tolling Defendants to restore his claims against

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any or all of the Tolling Defendants, and each of the Tolling Defendants reserves his

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respective rights in his sole discretion to assert any defenses or counterclaims against

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Plaintiff except as set forth herein. Neither Plaintiff’s dismissal of Tolling Defendants

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nor Defendants’ agreement to the terms of this stipulation shall be asserted or

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construed to be a waiver of any claim or defense among any of the Parties.

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3.

If Plaintiff files a complaint against either or both of the Tolling Defendants

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arising out of or relating to the Action or the allegations contained therein, or reinstates

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either or both of the Tolling Defendants in the Action by motion to join, amend, or

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otherwise, each Tolling Defendant agrees that any defenses based on laches, estoppel,

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statute of limitations, or the passage of time will be tolled as of June 15, 2017 and will

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be applied as though any future action against the Tolling Defendants arising out of or

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relating to the above-captioned action commenced on June 15, 2017.

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4.

This Agreement shall not prevent Plaintiff from obtaining discovery from

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each Tolling Defendant pursuant to the Federal Rules of Civil Procedure (“FRCP”) for

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non-parties and each Tolling Defendant agrees to respond to and make himself

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available for such discovery, including depositions pursuant to this Agreement,

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without waiving any rights they may otherwise have as a matter of law with respect to

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any such discovery or deposition so noticed. Furthermore, counsel for the Tolling

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Defendants will accept notice of their depositions as opposed to a subpoena under

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FRCP Rule 45 and Tolling Defendants will make themselves available to be deposed

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in the respective cities where they reside in Florida on mutually convenient dates. The

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Tolling Defendants agree that any disputes relating to discovery contemplated under

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this Paragraph shall be heard in this Court.

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STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT;
[PROPOSED] ORDER

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5.

Neither Plaintiff’s dismissal of the Tolling Defendants, nor this Agreement,

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shall be construed as an admission of liability or wrongdoing by any Defendant or any

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infirmity in Plaintiff’s claims as pleaded in the initial Complaint. Other than as set

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forth herein, by signing this Agreement, no Tolling Defendant waives any right to

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object to or defend against the Action or any related action on any grounds, including

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but not limited to jurisdictional defenses under FRCP Rule 12; however, Plaintiff’s

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dismissal without prejudice of the Tolling Defendants shall not be used against

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Plaintiff if he attempts to reinstate an action against the Tolling Defendants, nor shall

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Plaintiff be required to allege law, facts, or theories distinct from those contained in his

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initial Complaint in order to reinstate such action. By signing this Agreement,

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AutoNation, Inc. and LKQ Corporation do not waive any right to object to or defend

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against the Action or any related action pursuant to FRCP Rule 12(b)(6) or on statute

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of limitations grounds. Additionally, in the event of reinstatement of an action against

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either or both of the Tolling Defendants, the Tolling Defendants may seek dismissal on

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all available grounds provided under FRCP Rule 12 and any Defendant may seek

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transfer under 28 USC § 1404, provided, however, that no Defendant shall seek

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dismissal for improper joinder under FRCP Rule 19.

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6.

Plaintiff may, in his sole discretion, exercise the rights set forth herein to

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amend his Complaint to reinstitute the Tolling Defendants, file a separate complaint

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against the Tolling Defendants, or otherwise join the Tolling Defendants at any time

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prior to 90 days before the close of discovery. Plaintiff acknowledges that the Tolling

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Defendants would be entitled to engage in motion practice, including motions to

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dismiss the claims asserted against them, and to engage in necessary discovery. The

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Parties further agree that any subsequent written discovery by and between Plaintiff

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and the individual defendants would then be subject to a 20 day deadline, rather than

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the 30 days provided for in the FRCP. Assuming the period provided for discovery is

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at least 180 days, the Parties agree that written discovery and depositions will be

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completed by the Plaintiff and corporate Defendants prior to 90 days before the
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STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT;
[PROPOSED] ORDER

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discovery cutoff. Nothing in this Agreement shall preclude any party from petitioning

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the Court for modifications or extensions to the discovery and case management

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schedule should the circumstances warrant such modification or extension.

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This Agreement shall bind and benefit each of the Parties and their

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respective successors, assigns, and legal representatives. This Agreement shall be

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construed under the laws of the State of California except to the extent that federal law

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applies.

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8.

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This Agreement represents the entire agreement by and between the

parties hereto on the subject matters contained herein, and supersedes any and all prior

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agreements and understandings. This Agreement may not be modified except by a

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writing signed by all of the Parties to be bound.

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9.

Each person signing this Agreement represents and warrants that he

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or she is expressly authorized and empowered to sign on behalf of and bind the Parties

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on whose behalf this document has been executed. If this Agreement is executed by

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counsel, counsel represents and promises that counsel is expressly authorized to

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execute this Agreement on behalf of the Party or Parties counsel represents.

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10. For the purposes of resolving any disputes arising out of this Agreement,

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the Agreement shall be deemed to have been drafted by all Parties, none of whom may

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assert that it should be construed against the other.

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11. This Tolling Agreement may be executed in counterparts, including by

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signature transmitted by facsimile or by electronic signature with consent of the

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signatory.

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STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT;
[PROPOSED] ORDER

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Respectfully submitted,
DATED:

September 18, 2017

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By /s/ Kevin A. James
Kevin A. James

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Attorneys for Plaintiff
JAMES CARR

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BECKER & RUNKLE

DATED:

September 18, 2017

CHRISTA & JACKSON

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By /s/ Laura K. Christa (as authorized on 9/18/2017)
Laura K. Christa

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Attorneys for Defendants
AUTONATION, INC.
JEFFREY DAVIS
WAYNE HUIZENGA

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DATED:

September 18, 2017

FISHER & PHILLIPS, LLP

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By /s/ Joel W. Rice (as authorized on 9/18/2017)
Joel W. Rice

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Attorneys for Defendant
LKQ CORPORATION

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DATED:

September 18, 2017

KENNY NACHWALTER, PA

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By /s/ Stanley H. Wakshlag (as authorized on 9/18/2017)
Stanley H. Wakshlag
Attorneys for Defendant
WAYNE HUIZENGA
PRO HAC VICE

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STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT;
[PROPOSED] ORDER

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ORDER

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IT IS HEREBY ORDERED THAT Defendants Wayne Huizenga and Jeffrey

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Davis are dismissed without prejudice pursuant to the terms of the foregoing

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stipulation.

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DATED: 9/19/2017

/s/ John A. Mendez_______________________
HON. JOHN A. MENDEZ
UNITED STATES DISTRICT COURT JUDGE

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STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT;
[PROPOSED] ORDER