Bank of America N.A. v. Micheletti Family Partnership et al

Filing 41

ORDER GRANTING 40 Stipulation re Preservation Depositions. Signed by Judge Jeffrey S. White on October 3, 2008. (jswlc3, COURT STAFF) (Filed on 10/3/2008)

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1 2 3 4 5 BUCHALTER NEMER A Professional Corporation JAMES B. WRIGHT (SBN: 63241) RICHARD C. DARWIN (SBN: 161245) 333 Market Street, 25th Floor San Francisco, CA 94105-2126 Telephone: (415) 227-0900 Facsimile: (415) 227-0770 jwrigiit@ buchalter. corn 6 7 8 Attorneys for Petitioner BANK OF AMERICA, N.A. UNITED STATES DISTRICT COURT 9 10 11 NORTHERN DISTRICT OF CALIFORNIA BANK OF AMERICA, N.A., a national banking association, Petitioner, CASE NO. CV 08-2902 JSW 12 13 vs. 14 15 STIPULATION AND [PROPOSED] ORDER PERMITTING DEPOSITIONS TO PERPETUATE TESTIMONY [F.R.C.P. 29(a)] 16 17 MICHELETTI FAMILY PARTNERSHIP, a California Limited Partnership, ARTHUR MICHELETTI, an individual, and JANICE MICHELETTI, an individual, Respondents. 18 19 WHEREAS, Bank of America, N.A. ("Bank of America") has filed a Petition To Compel Arbitration in the above-captioned action against the Micheletti Family Partnership, Arthur Micheletti, and Janice Micheletti (the "Petition"); WHEREAS, Respondent Arthur Micheletti has filed an action against Bank of America in Francisco Superior Court (the "State Action"); WHEREAS, Bank of America has filed a motion in the State Action to stay the State Action, which is scheduled to be heard by the San Francisco Superior Court on October 16, 2008 (and which the parties have agreed to continue to October 23, 2008), and has also filed a motion 20 21 22 23 24 25 26 27 2? to compel arbitration in this Court, which is scIedulcd to be heard by this Court on October 17, 2008: u\ CV 08-2902 JSW STiPULATION AND ORDER PERMITTPG lifE PARTIES TO CWDLCT LI\LflED DISCOVERY 1 1 WHEREAS, Arthur Micheletti has filed a motion in this Court to dismiss or stay the Petition, which is also scheduled to be heard by this Court on October 17, 2008; WHEREAS, Arthur Micheletti and Bank of America have served notices andlor subpoenas for the depositions of Arthur Micheletti, Manlio Micheletti, Larry Johnston, and Don 2 3 4 5 Miller (the "Subject Witnesses") in the State Action; WHEREAS the Subject Witnesses are all over 75 years old; 6 7 8 WHEREAS, Bank of America, the Micheletti Family Partnership, Arthur Micheletti, and Janice Micheletti (collectively, "the Parties") recognize and agree that it would benefit all Parties and would serve the interests of justice to conduct expedited depositions to perpetuate the testimony of the Subject Witnesses; 9 10 11 NOW, THEREFORE, the Parties hereby agree and stipulate that the depositions of the Subject Witnesses may proceed in the State Action, unless and until this Court grants Bank of America's Petition to Compel Arbitration, in which case the Parties agree and stipulate that the depositions shall proceed in this federal action, until such time as an arbitrator has been appointed 12 13 14 15 and has cleared conflicts. If and when an arbitrator has been appointed and has cleared all conflicts, the parties agree that if the depositions are not yet completed, they shall proceed in the arbitration proceeding without regard for whether the applicable arbitration rules and procedures provide for, or create a right to take, depositions; The Parties further agree and stipulate that the sole purpose of the depositions taken pursuant to this Stipulation and Order is to preserve the testimony of the Subject Witnesses, taking into account their advanced age and the relevance of their testimony to the disputes set forth ui the Petition, and that said deposition testimony may be used for all purposes as though taken in this federal proceeding, in any arbitration between or among the Parties andlor Larry Johnston (a party to the State Action and a Subject Witness), andlor in the State Action; The Parties further agree and stipulate that permitting the depositions of the Subject 16 17 18 19 20 21 22 23 24 25 26 27 28 Witnesses to be taken in the State Action is not, and will not be argued as, a basis for this Court's ab:1cntion or dismi.sal of the Petition under the doctrine set forth in Colorado River Water Conxert'ation Dist. v. United States, 424 U.S. 800, 813 (1976). B 2 CV 08-2902 JSW STIPULATION AND ORDER PERMITTING THE PARTIES TO CONDUCT LIMITED DISCOVERY The Parties further agree and stipulate that by participating in the limited discovery 2 3 permitted by the terms of this Stipulation and Order to preserve the testimony of the Subject Witnesses, Bank of America is not waiving its right to arbitrate the disputes set forth in the Petition. Respondents Arthur Micheletti, Janice Micheletti and the Micheletti Family Partnership agree and stipulate that they shall not argue or otherwise take the position that Bank of America has waived its right to arbitrate by participating in the discovery set forth above. DATED: October 2008 4 5 6 7 , 8 BUCHALTER NEMER A Professional Corporation 9 10 11 By: (1 12 13 CHARD C. DARWIN Attorneys for Petitioner BANK OF AMERICA, N.A. DATED: October , 2008 KERR & WAGSTAFFE LLP 14 15 By: 16 17 18 19 JAMES M. WAGSTAFFE Attorneys for Respondents MICHELETTI FAMILY PARTNERSHIP, ARTHUR MICHELETTI, and JANICE MICHELETTI ORDER Pursuant to the Stipulation set forth above, and good cause appearing, IT IS SO ORDERED. 20 21 22 23 DATED: 24 25 26 27 28 RN HON. JEFFREY S. WHIlE Judge of the United States District Court 3 CV 08-2902 JSW STIPIJLATIO\ AND ORDER PERMITTING THE PARTIES TO CONDUCT LIMITED DISCOVERY The Parties further agree and stipulate that by participating in the limited discovery ed by the terms of this Stipulation and Order to preserve the testimony of the Subject ses, Bank of America is not waiving its right to arbitrate the disputes set forth in the 4 5 6 Petition. Respondents Arthur Micheletti, Janice Micheletti and the Micheletti Family Partnership agree arid stipulate that they shall not argue or otherwise take the position that Bank of America has waived its right to arbitrate by participating in the discovery set forth above. DATED: October 2008 7 BIJCHALTER NEMER A Professional Corporation 9 0 By: 12 13 14 RICHARD C. DARWIN Attorneys for Petitioner BANK OE AMERiCA, N.A. DATED: October 2008 KERR & WAGSTAFFE LLP 15 16 17 By: *, WAGST ys for Respon MIC ETTI FAMILY PARTNERSHIP, ARTHUR MICIiELETTI, and JANECE MIcHELET-rI 18 19 ORI)ER Pursuant to the Stipulation set forth above, and good cause appearing, IT IS SO ORDERED. 20 2 22 23 ATLD.October 3, 2008 24 HON. JEbIREY S. WHffE 25 Judge of the United States District Court 26 27 28 22528 ún F. ,-cbc.? V 08-2902 JSW ON AND ORDER PERMITTING THE PARTIES TO CONDUCT LIMITED DLSCOVERY V0d 9t7:IT 8OO OOOTTt7:XI dT] dLS9E3['1

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