California State Foster Parent Association et al v. Wagner et al

Filing 137

STIPULATION AND ORDER REFERRING MATTER TO SPECIAL MASTER MARC BERNSTEIN PURSUANT TO FED. R. CIV. P. 53 (whalc2, COURT STAFF) (Filed on 5/22/2009)

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Case 3:07-cv-05086-WHA Document 135 Filed 05/21/2009 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHILDREN'S ADVOCACY INSTITUTE University of San Diego School of Law Robert C. Fellmeth (CA SBN 49897) Edward Howard (CA SBN 151936) Christina McClurg Riehl (CA SBN 216565) Elisa D'Angelo Weichel (CA SBN 149320) 5998 Alcala Park San Diego, California 92110 Telephone: 619.260.4806 Facsimile: 619.260.4753 cpil@sandiego.edu MORRISON & FOERSTER LLP Kimberly N. Van Voorhis (CA SBN 197486) Marc David Peters (CA SBN 211725) Richard S. Ballinger (CA SBN 223655) 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: 650.813.5600 Facsimile: 650.494.0792 MORRISON & FOERSTER LLP Steve Keane (CA SBN 247588) Adrianne E. Marshack (CA SBN 253682) 12531 High Bluff Drive, Suite 100 San Diego, California 92130-2040 Telephone: 858.720.5100 Facsimile: 858.720.5125 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION California State Foster Parent Association, California State Care Providers Association, and Legal Advocates for Permanent Parenting, Plaintiffs, v. JOHN A. WAGNER, Director of the California Department of Social Services, in his official capacity; MARY AULT, Deputy Director of the Children and Family Services Division of the California Department of Social Services, in her official capacity, Defendants. STIPULATION AND [PROPOSED] ORDER REFERRING MATTER TO SPECIAL MASTER Case No. C 07-5086 WHA pa-1336779 Case No. C 07-5086 WHA STIPULATION AND [PROPOSED] ORDER REFERRING MATTER TO SPECIAL MASTER MARC BERNSTEIN PURSUANT TO FED. R. CIV. P. 53. 1 Case 3:07-cv-05086-WHA Document 135 Filed 05/21/2009 Page 2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATION AND REFERENCE TO SPECIAL MASTER The parties have conferred and hereby stipulate as follows: WHEREAS, on December 19, 2008, Plaintiffs filed a motion for attorneys' fees; WHEREAS, on February 6, 2009, the Court issued an order that Plaintiffs were the prevailing party in the action, vacating the previously calendared hearing date for Plaintiffs' motion for attorneys' fees, and setting forth a procedure for determining the appropriate fee award to be followed by the parties; WHEREAS, on March 19, 2009, the parties filed a Joint Report regarding the motion for attorneys' fees; and WHEREAS, on May 14, 2009, the Court appointed Special Master Marc Bernstein to hear Plaintiffs' motion for attorneys' fees and ordered the parties to file a proposed form of reference; THE PARTIES THEREFORE respectfully request that the Court adopt the following proposed form of reference: 1. Appointment of the Special Master. The Court, having given the parties notice and an opportunity to be heard, has nominated Marc Bernstein, of the Bernstein Law Group, 555 Montgomery St., Suite 1650, San Francisco, CA, 94111, 415-765-6633, as the Special Master to hear Plaintiffs' motion for attorneys' fees pursuant to Fed. R. Civ. P. 53. Following the filing of an affidavit by Mr. Bernstein, pursuant to Fed. R. Civ. P. 53(b)(3), the Court will order his appointment subject to the following terms. 2. Payment of the Special Master. Plaintiffs shall collectively bear 50% of the reasonable fees and expenses associated with the Special Master, and Defendants shall collectively bear the remaining 50%. Each Party, however, will bear all expenses associated with its own participation in any proceedings before the Special Master or the Court (including, but not limited to, its own attorneys' fees and costs of witnesses). STIPULATION AND [PROPOSED] ORDER REFERRING MATTER TO SPECIAL MASTER Case No. C 07-5086 WHA pa-1336779 2 Case 3:07-cv-05086-WHA Document 135 Filed 05/21/2009 Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Authority of the Special Master. The Special Master is appointed to hear and rule upon Plaintiffs' pending motion for attorneys' fees, as directed by the Courts' May 14, 2009 Order. In connection with that motion, the Special Master may hold hearings, receive testimony, and conduct a reasonable investigation into the underlying factual matters. The Special Master may review privileged communications and documents in camera, and doing so will not constitute any waiver of privilege by the proffering party or parties, and the Special Master may communicate ex parte with the parties in connection with any such in camera review only to the extent necessary to resolve questions or matters arising from privileged communications or documents under review. The Special Master shall have all powers granted by Federal Rule of Civil Procedure 53(c). 4. Plaintiffs' Motion for Attorneys' Fees Promptly following the issuance of the Court's order appointing the Special Master, the Special Master will initiate a conference with the parties to discuss the papers relevant to Plaintiffs' December 19, 2008 motion for attorneys' fees; any factual or legal matters in dispute; a reasonable schedule for briefing any legal matters not already addressed in the parties' papers; a reasonable schedule for investigating any factual matters in dispute; and setting a date for hearing Plaintiffs' motion for attorneys' fees. Following the hearing on Plaintiffs' motion for attorneys' fees, the Special Master shall issue and file an order that states the Special Master's ruling and any underlying legal or factual findings. 5. Proceedings Before the Special Master Prior to initiating proceedings with the Special Master, a party must make a good faith effort to resolve the issue with the opposing party. Any Party seeking to initiate proceedings with the Special Master shall give written notice thereof to the other Party. Such notice will state that it is a notice initiating the Special Master procedures; describe briefly the nature of the dispute; describe briefly the notifying Party's claim or position in connection with the dispute; confirm that reasonable attempts have been made to resolve the issue and describe the matters remaining in dispute and identify the matters resolved by the parties, if any; and state an agreed briefing and hearing schedule. The Special Master shall promptly advise the parties of the briefing and STIPULATION AND [PROPOSED] ORDER REFERRING MATTER TO SPECIAL MASTER Case No. C 07-5086 WHA pa-1336779 3 Case 3:07-cv-05086-WHA Document 135 Filed 05/21/2009 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 hearing schedule for the proceedings. Following the hearing, the Special Master shall issue and file an order that states the Special Master's ruling and any underlying legal or factual findings. SO STIPULATED. Dated: May 21, 2009 MORRISON & FOERSTER, LLP By: /s/ Kimberly N. Van Voorhis Kimberly N. Van Voorhis Attorneys for Plaintiffs Dated: May 21, 2009 OFFICE OF THE CALIFORNIA ATTORNEY GENERAL By: /s/ George Prince George Prince, Deputy Attorneys for Defendants 22 Dated: May ____, 2009 ER N D IS T IC T R OF STIPULATION AND [PROPOSED] ORDER REFERRING MATTER TO SPECIAL MASTER Case No. C 07-5086 WHA pa-1336779 A C LI ____________________________________ m Alsup THE HONORABLEilWILLIAM H. ALSUP e W lia Judg UNITED STATES DISTRICT JUDGE FO R NIA PURSUANT TO STIPULATION, IT IS SO ORDERED. D RDERE S SO O IT I NO UNIT ED S S DISTRICT TE C TA RT U O RT H 4 Case 3:07-cv-05086-WHA Document 135 Filed 05/21/2009 Page 5 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GENERAL ORDER 45 ATTESTATION I, Kimberly N. Van Voorhis, am the ECF user whose ID and password are being used to file this Stipulation. In compliance with General Order 45, X.B., I hereby attest that George Prince of the Office of the California Attorney General, has concurred in the filing of this document with his electronic signature. Dated: May 21, 2009 By: /s/ Kimberly N. Van Voorhis Kimberly N. Van Voorhis Attorneys for Plaintiffs STIPULATION AND [PROPOSED] ORDER REFERRING MATTER TO SPECIAL MASTER Case No. C 07-5086 WHA pa-1336779 5

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