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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1 2 3 4 5 6 Kevin A. James, SBN 285302 Becker & Runkle 263 Main Street, Level 2 Placerville, CA 95667 Email: Telephone: (530) 295-6400 Fax: (530) 295-6408 7 Attorney for Plaintiff JAMES CARR 8 [continued on next page] 9 10 11 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 19 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 20 21 22 23 24 25 26 27 28 1 STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT; [PROPOSED] ORDER 1 2 3 4 5 6 Laura K. Christa, SBN 97319 CHRISTA & JACKSON 1901 Avenue of the Stars, Suite 1100 Los Angeles, California 90067-6002 E-mail: Telephone: (310) 282-8040 Attorneys for Defendants AUTONATION, Inc. JEFFREY DAVIS WAYNE HUIZENGA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Melissa A. Jones, SBN 205576 Matthew Struhar, SBN 293973 STOEL RIVES LLP 500 Capitol Mall, Suite 1600 Sacramento, CA 95814 E-mail: E-mail: Telephone: (916) 447-4700 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: Telephone: (213) 330-4454 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: (305) 373-1000 Attorneys for Defendant WAYNE HUIZENGA PRO HAC VICE 2 STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT; [PROPOSED] ORDER 1 WHEREAS, Plaintiff James Carr (“Plaintiff”) commenced the above-captioned 2 action with the filing of the operative Complaint on June 15, 2017 in the Superior 3 Court for the State of California for the County of El Dorado with the following 4 named defendants: (1) AutoNation, Inc., a Delaware corporation; (2) Jeffrey Davis, an 5 individual; (3) Wayne Huizenga, an individual; and (4) LKQ Corporation, a Delaware 6 corporation (collectively, “Defendants,” and, together with Plaintiff, the “Parties”); 7 WHEREAS Defendants removed the above-captioned action to this Court on 8 9 July 27, 2017 (hereinafter referred to as the “Action”); WHEREAS the Parties have engaged in meaningful meet and confer efforts in 10 advance of Defendants filing any motions to dismiss or engaging in other early motion 11 practice; 12 WHEREAS, among the issues discussed in those meet and confer sessions was 13 the continued inclusion in this Action of Defendants Huizenga and Davis (the “Tolling 14 Defendants”), two individuals domiciled in Florida, in this action and the 15 appropriateness of a California forum for a suit involving those two Florida residents; 16 WHEREAS, AutoNation, Inc. and LKQ Corporation have indicated a 17 willingness to forego all other venue and jurisdictional challenges and enter into the 18 following agreement governing tolling and other matters in exchange for Plaintiff’s 19 dismissal without prejudice of the Tolling Defendants from this action pursuant to the 20 terms of the following agreement (hereinafter referred to as the “Agreement”). 21 WHEREAS, without admitting or denying the validity of any challenges the 22 Tolling Defendants may make to the Complaint, jurisdiction, or venue, and in an effort 23 to narrow the issues at this early stage of the Action, Plaintiff is willing to dismiss the 24 Tolling Defendants from this Action without prejudice provided his rights to reinstate, 25 join, or otherwise resume this Action or a separate action against the Tolling 26 Defendants are in no way prejudiced. 27 28 IT IS HEREBY STIPULATED and AGREED, by and among counsel of record for Plaintiff and Defendants, that: 3 STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT; [PROPOSED] ORDER 1 2 3 1. The Action shall be dismissed, without prejudice, as to the Tolling Defendants, with each party to bear his own costs and attorneys’ fees. 2. Plaintiff reserves the right, in his sole discretion, to amend his Complaint or 4 to file a separate complaint against the Tolling Defendants to restore his claims against 5 any or all of the Tolling Defendants, and each of the Tolling Defendants reserves his 6 respective rights in his sole discretion to assert any defenses or counterclaims against 7 Plaintiff except as set forth herein. Neither Plaintiff’s dismissal of Tolling Defendants 8 nor Defendants’ agreement to the terms of this stipulation shall be asserted or 9 construed to be a waiver of any claim or defense among any of the Parties. 10 3. If Plaintiff files a complaint against either or both of the Tolling Defendants 11 arising out of or relating to the Action or the allegations contained therein, or reinstates 12 either or both of the Tolling Defendants in the Action by motion to join, amend, or 13 otherwise, each Tolling Defendant agrees that any defenses based on laches, estoppel, 14 statute of limitations, or the passage of time will be tolled as of June 15, 2017 and will 15 be applied as though any future action against the Tolling Defendants arising out of or 16 relating to the above-captioned action commenced on June 15, 2017. 17 4. This Agreement shall not prevent Plaintiff from obtaining discovery from 18 each Tolling Defendant pursuant to the Federal Rules of Civil Procedure (“FRCP”) for 19 non-parties and each Tolling Defendant agrees to respond to and make himself 20 available for such discovery, including depositions pursuant to this Agreement, 21 without waiving any rights they may otherwise have as a matter of law with respect to 22 any such discovery or deposition so noticed. Furthermore, counsel for the Tolling 23 Defendants will accept notice of their depositions as opposed to a subpoena under 24 FRCP Rule 45 and Tolling Defendants will make themselves available to be deposed 25 in the respective cities where they reside in Florida on mutually convenient dates. The 26 Tolling Defendants agree that any disputes relating to discovery contemplated under 27 this Paragraph shall be heard in this Court. 28 4 STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT; [PROPOSED] ORDER 1 5. Neither Plaintiff’s dismissal of the Tolling Defendants, nor this Agreement, 2 shall be construed as an admission of liability or wrongdoing by any Defendant or any 3 infirmity in Plaintiff’s claims as pleaded in the initial Complaint. Other than as set 4 forth herein, by signing this Agreement, no Tolling Defendant waives any right to 5 object to or defend against the Action or any related action on any grounds, including 6 but not limited to jurisdictional defenses under FRCP Rule 12; however, Plaintiff’s 7 dismissal without prejudice of the Tolling Defendants shall not be used against 8 Plaintiff if he attempts to reinstate an action against the Tolling Defendants, nor shall 9 Plaintiff be required to allege law, facts, or theories distinct from those contained in his 10 initial Complaint in order to reinstate such action. By signing this Agreement, 11 AutoNation, Inc. and LKQ Corporation do not waive any right to object to or defend 12 against the Action or any related action pursuant to FRCP Rule 12(b)(6) or on statute 13 of limitations grounds. Additionally, in the event of reinstatement of an action against 14 either or both of the Tolling Defendants, the Tolling Defendants may seek dismissal on 15 all available grounds provided under FRCP Rule 12 and any Defendant may seek 16 transfer under 28 USC § 1404, provided, however, that no Defendant shall seek 17 dismissal for improper joinder under FRCP Rule 19. 18 6. Plaintiff may, in his sole discretion, exercise the rights set forth herein to 19 amend his Complaint to reinstitute the Tolling Defendants, file a separate complaint 20 against the Tolling Defendants, or otherwise join the Tolling Defendants at any time 21 prior to 90 days before the close of discovery. Plaintiff acknowledges that the Tolling 22 Defendants would be entitled to engage in motion practice, including motions to 23 dismiss the claims asserted against them, and to engage in necessary discovery. The 24 Parties further agree that any subsequent written discovery by and between Plaintiff 25 and the individual defendants would then be subject to a 20 day deadline, rather than 26 the 30 days provided for in the FRCP. Assuming the period provided for discovery is 27 at least 180 days, the Parties agree that written discovery and depositions will be 28 completed by the Plaintiff and corporate Defendants prior to 90 days before the 5 STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT; [PROPOSED] ORDER 1 discovery cutoff. Nothing in this Agreement shall preclude any party from petitioning 2 the Court for modifications or extensions to the discovery and case management 3 schedule should the circumstances warrant such modification or extension. 4 7. This Agreement shall bind and benefit each of the Parties and their 5 respective successors, assigns, and legal representatives. This Agreement shall be 6 construed under the laws of the State of California except to the extent that federal law 7 applies. 8 8. 9 This Agreement represents the entire agreement by and between the parties hereto on the subject matters contained herein, and supersedes any and all prior 10 agreements and understandings. This Agreement may not be modified except by a 11 writing signed by all of the Parties to be bound. 12 9. Each person signing this Agreement represents and warrants that he 13 or she is expressly authorized and empowered to sign on behalf of and bind the Parties 14 on whose behalf this document has been executed. If this Agreement is executed by 15 counsel, counsel represents and promises that counsel is expressly authorized to 16 execute this Agreement on behalf of the Party or Parties counsel represents. 17 10. For the purposes of resolving any disputes arising out of this Agreement, 18 the Agreement shall be deemed to have been drafted by all Parties, none of whom may 19 assert that it should be construed against the other. 20 11. This Tolling Agreement may be executed in counterparts, including by 21 signature transmitted by facsimile or by electronic signature with consent of the 22 signatory. 23 24 25 26 27 28 6 STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT; [PROPOSED] ORDER 1 2 3 Respectfully submitted, DATED: September 18, 2017 4 By /s/ Kevin A. James Kevin A. James 5 Attorneys for Plaintiff JAMES CARR 6 7 8 BECKER & RUNKLE DATED: September 18, 2017 CHRISTA & JACKSON 9 10 By /s/ Laura K. Christa (as authorized on 9/18/2017) Laura K. Christa 11 Attorneys for Defendants AUTONATION, INC. JEFFREY DAVIS WAYNE HUIZENGA 12 13 14 15 16 DATED: September 18, 2017 FISHER & PHILLIPS, LLP 17 By /s/ Joel W. Rice (as authorized on 9/18/2017) Joel W. Rice 18 19 Attorneys for Defendant LKQ CORPORATION 20 21 DATED: September 18, 2017 KENNY NACHWALTER, PA 22 23 24 25 26 By /s/ Stanley H. Wakshlag (as authorized on 9/18/2017) Stanley H. Wakshlag Attorneys for Defendant WAYNE HUIZENGA PRO HAC VICE 27 28 7 STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT; [PROPOSED] ORDER 1 ORDER 2 IT IS HEREBY ORDERED THAT Defendants Wayne Huizenga and Jeffrey 3 Davis are dismissed without prejudice pursuant to the terms of the foregoing 4 stipulation. 5 6 7 8 DATED: 9/19/2017 /s/ John A. Mendez_______________________ HON. JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 STIPULATION OF DISMISSAL WITHOUT PREJUDICE & TOLLING AGREMENT; [PROPOSED] ORDER

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