Equal Employment Opportunity Commission v. Community Dental Services, Inc.

Filing 62

ORDER for Relief from Order of Dismissal re 60 Proposed Order filed by Equal Employment Opportunity Commission. Signed by Judge Charles R. Breyer on 12/18/08. (be, COURT STAFF) (Filed on 12/18/2008)

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WILLIAM R. TAMAYO (CA Bar No. 084965) JONATHAN T. PECK (VA Bar No. 12303) SANYA HILL MAXION (WA Bar No. 18739) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, CA 94105 Telephone No. [phone] Facsimile No. [phone] Attorneys for Plaintiff Equal Employment Opportunity Commission UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA EQUAL EMPLOYMENT OPPORTUNITY ) ) COMMISSION, ) ) ) Plaintiff, ) ) v. ) ) COMMUNITY DENTAL SERVICES, INC.,) ) dba SMILECARE , ) ) ) Defendant. _______________________________________ ) ) ) ALL RELATED ACTIONS. _______________________________________ ) Civil Action No. C-07-04950-CRB REQUEST FOR RELIEF FROM ORDER OF DISMISSAL; CERTIFYING DECLARATION OF SANYA HILL MAXION IN SUPPORT THEREOF; [proposed] ORDER

REQUEST FOR RELIEF FROM ORDER OF DISMISSAL Plaintiff Equal Employment Opportunity Commission (EEOC) hereby requests relief from the Conditional Order of Dismissal which was entered in this case on November 10, 2008. This request, which is supported by the accompanying certifying declaration of Sanya Hill Maxion, is made because the settlement which the parties agreed to in their October 22, 2008 settlement mediation which gave rise to the Court's Order of Dismissal, was not finalized until December 16, 2008, and the consideration for that settlement, a Consent Decree which provides for monetary damages and injunctive relief, was submitted to the Court for approval on December 16, 2008.
REQUEST FOR RELIEF FROM ORDER OF DISMISSAL; CERTIFYING DECLARATION OF SANYA HILL MAXION IN SUPPORT THEREOF; ORDER Page 1

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Plaintiff EEOC requests relief from the Conditional Order of Dismissal, to allow the parties lodge their finalized Consent Decree with the Court. In the alternative,

Plaintiff EEOC requests that the Order of Dismissal be vacated and the case restored to the Court's calendar. Dated: December 16, 2008 /S/ Sanya Hill Maxion Attorney for Plaintiff EEOC

REQUEST FOR RELIEF FROM ORDER OF DISMISSAL; CERTIFYING DECLARATION OF SANYA HILL MAXION IN SUPPORT THEREOF; ORDER Page 2

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CERTIFYING DECLARATION OF SANYA HILL MAXION IN SUPPORT OF REQUEST FOR RELIEF FROM ORDER OF DISMISSAL I, Sanya Hill Maxion, declare: 1. I am an attorney at law, licensed to practice in the State of Washington, a

senior trial attorney with Plaintiff EEOC, and an attorney of record for Plaintiff EEOC in the above-captioned case. 2. On October 22, 2008 the parties to this case participated in mediation

under the Northern District of California's Alternative Dispute Resolution (ADR) program, with Mediator John Barg. I was present at that mediation representing

Plaintiff EEOC. At that mediation, the parties agreed that the case would be settled through a Consent Decree. The parties agreed on a monetary damages figure, various injunctive provisions which would be included in the Decree, the duration of the Decree (three years), and other matters related to settlement of the case. The parties did not write the exact language of the Consent Decree at that mediation, but did reduce to writing an agreement addressing the basic settlement terms. 3. On October 24, 2008, the mediator filed a Certification of ADR Session

with this Court stating that the mediation had taken place, checking that the case had settled and that the ADR process was completed. 4. On November 10, 2008, this Court entered an Order of Dismissal This

Order of Dismissal provides that the case is "dismissed without prejudice," but further provides: [H]owever, that if any party hereto certifies to this court, within thirty days with proof of service of a copy thereof, that the agreed consideration for said settlement has not been delivered over, the foregoing order shall stand vacated and this cause shall forthwith be restored to the calendar to be set for trial. (NDCA Docket No. 59) 5. Although the parties had exchanged drafts of the Consent Decree and

related settlement documents prior to December 16, 2008, they did not finalize those documents until that date.

REQUEST FOR RELIEF FROM ORDER OF DISMISSAL; CERTIFYING DECLARATION OF SANYA HILL MAXION IN SUPPORT THEREOF; ORDER Page 3

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6.

Plaintiff EEOC therefore hereby requests relief from the Dismissal Order

so that the parties can lodge the Consent Decree with the Court for approval or, in the alternative, that the Court vacate the Order of Dismissal Upon Settlement and restore this matter to the Court's calendar. 7. As counsel for Plaintiff EEOC, pursuant to the provisions of the Order of

Dismissal Upon Settlement, I hereby certify to the Court, with proof of service of a copy on opposing counsel, that settlement has not in fact occurred. I declare under penalty of perjury that the foregoing is true and correct. Executed this sixteenth day of December, 2008, at San Francisco, California.

/S/ Sanya Hill Maxion

ORDER

IT IS HEREBY ORDERED that the Order of Dismissal issued by this Court on November 10, 2008 is hereby vacated and the action is restored to the Court's calendar in order to allow the parties to lodge their Consent Decree with the Court for approval.

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