Jefferson v. Kellogg USA, Inc et al

Filing 21

ORDER dismissing and substituting defendants. Signed by Judge Illston on 10/28/08. (ts, COURT STAFF) (Filed on 10/29/2008)

Case 3:08-cv-04132-SI

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Filed 10/22/2008

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1 COOPER & MORA Beth W. Mora, Esq. (SBN 208859) 2 Email: [e-mail] Kay E. Tuazon, Esq. (SBN 248896) 3 Email: [e-mail] 18 Crow Canyon Court, Suite 145 4 San Ramon, CA 94583 Telephone: [phone] Facsimile: [phone] 6 Attorneys for Plaintiff LATOSHA JEFFERSON 7 MCGUIREWOODS LLP MCGUIREWOODS LLP 8 Matthew C. Kane, Esq. (SBN 171829) Curtis L. Mack (PHV/Ga. Bar No. 463636) Email: [e-mail] Email: [e-mail] 9 Sara E. Willey, Esq. (SBN 249701) Halima Horton (PHV/Ga. Bar No. 367888) Email: [e-mail] Email: [e-mail] 10 1800 Century Park East, 8th Floor 1170 Peachtree St. N.E., Suite 2100 Los Angeles, California 90067 Atlanta, Georgia, 30309 11 Telephone: [phone] Telephone: [phone] Facsimile: [phone] Facsimile: [phone] 12 Attorneys for Defendants 13 KELLOGG USA, INC. and TIM RODRIQUEZ and proposed substituted Defendant KELLOGG SALES COMPANY 14 15 16 17 18 LATOSHA JEFFERSON, 19 20 vs. Plaintiffs, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION CASE NO. 3:08-cv-04132-SI STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL AND SUBSTITUTION OF NAMED DEFENDANTS

21 KELLOGG USA, INC., a Michigan Corporation; KEEBLER, a Michigan 22 Corporation; JIM HESS, an individual; TIM RODRIQUEZ, an individual; and DOES 1 23 through 50, inclusive, 24 25 26 27 28
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Defendants.

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RECITALS WHEREAS Plaintiff Latosha Jefferson filed a First Amended Complaint ("FAC") on

3 August 1, 2008 in Alameda County Superior Court against Defendants Kellogg USA, Inc., a 4 Michigan corporation ("Kellogg USA"), Keebler, a Michigan corporation ("Keebler"), Jim Hess, 5 an individual ("Hess"), and Tim Rodriquez, an individual ("Rodriquez") (collectively the "Named 6 Defendants"); 7 WHEREAS only Defendants Kellogg USA and Rodriquez have been served in this action,

8 which they removed to this Court on August 29, 2008 (Doc. #1); 9 WHEREAS Defendants Kellogg USA and Rodriquez filed a Motion to Dismiss Plaintiff's

10 Sixth, Seventh, and Eighth Causes of Action in the FAC pursuant to Fed. Rules Civ. P. 12(b)(6) 11 and to Strike Plaintiff's Punitive Damages Claims pursuant to Fed. Rules Civ. P. 12(f) (the 12 "Pending Motion") on September 9, 2008 (Doc. #8), which is set for hearing on November 14, 13 2008; and 14 WHEREAS all of the Named Defendants have been misjoined as parties in this action and

15 the parties are stipulating herein to the dismissal of the Named Defendants without prejudice and 16 to the substitution of Kellogg Sales Company, a Delaware corporation with its principal place of 17 business in Michigan ("KSC"), as the sole Defendant in this action which, without admitting any 18 liability to Plaintiff or limiting its defenses thereto in any way, KSC does not dispute was 19 Plaintiff's employer at all times relevant to this action and, therefore, would be properly joined as a 20 party to this action; 21 22 23 STIPULATION NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the

24 parties hereto through their respective undersigned counsel that: 25 26 27 28
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1.

All references and allegations in the FAC identifying or referring to Defendant Kellogg USA shall be amended to read, mean, and refer to "Kellogg Sales Company, A Delaware corporation with its principal place of business in Michigan". Upon entry of the Court's Order approving this Stipulation, counsel for 2

STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL AND SUBSTITUTION OF NAMED DEFENDANTS

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Kellogg USA will be deemed to have accepted service of the FAC as so amended on behalf of Defendant KSC, the removal of this action to this Court will be deemed to have been effectuated by Defendant KSC, and the pending Motion will be deemed to have been filed and brought solely by and on behalf of Defendant KSC; 2. Defendants Kellogg USA and Keebler shall be dismissed without prejudice, and the parties shall each bear their own respective attorneys fees and costs associated with such dismissal; 3. Defendants Rodriquez and Hess shall be dismissed without prejudice and the parties shall each bear their own respective costs associated with such dismissal. Defendant KSC shall make them available for depositions and trial to the extent they are employed by Defendant KSC, including accepting service of deposition notices on their behalf and refraining from objecting to such notices on the basis that they are not parties to this action. All other objections by Defendant KSC, however, are expressly and fully reserved; 4. The grounds for removing this action to this Court have not been contested by Plaintiff and thus, Plaintiff waives any objections or challenges to the Court's jurisdiction to hear and decide this action, but in doing so Plaintiff does not waive any related argument or opposition which might be relevant to the grounds for the Pending Motion; and

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5.

The Pending Motion will remain on calendar for hearing on November 14, 2008, and be deemed to be filed and brought solely by and on behalf of Defendant KSC against the FAC as amended by this Stipulation and Order.

5 DATED: October 22, 2008 6 7 8 9 10 DATED: October 22, 2008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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COOPER & MORA By: /s/ Beth W. Mora, Esq. Beth W. Mora, Esq. Kay E. Tuazon, Esq. Attorneys for Plaintiff LATOSHA JEFFERSON

MCGUIREWOODS LLP By: /s/ Matthew C. Kane, Esq. Matthew C. Kane, Esq. Curtis L. Mack, Esq. Halima Horton, Esq. Sara E. Willey, Esq. Attorneys for Defendants KELLOGG USA, INC. and TIM RODRIQUEZ and proposed substituted Defendant KELLOGG SALES COMPANY

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[PROPOSED] ORDER

Having reviewed and considered the foregoing Stipulation of the parties, and good cause

4 appearing for the same, IT IS HEREBY ORDERED as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1.

All references and allegations in the FAC (as defined in the Stipulation) identifying or referring to Defendant Kellogg USA (as defined in the Stipulation) shall be and hereby are amended to read, mean, and refer to "Kellogg Sales Company, A Delaware corporation with its principal place of business in Michigan". Upon the entry of this Order, counsel for Kellogg USA shall be and hereby is deemed to have accepted service of the FAC, as so amended, on behalf of Defendant KSC (as defined in the Stipulation), the removal of this action to this Court will be deemed to have been effectuated by Defendant KSC, and the Pending Motion (as defined in the Stipulation) will be deemed to have been filed and brought solely by and on behalf of Defendant KSC;

2.

Defendants Kellogg USA and Keebler (as defined in the Stipulation) shall be and hereby are dismissed without prejudice, and the parties shall each bear their own respective attorneys fees and costs associated with such dismissal;

3.

Defendants Rodriquez and Hess (as defined in the Stipulation) shall be and hereby are dismissed without prejudice and the parties shall each bear their own respective fees and costs associated with such dismissal. Defendant KSC shall make them available for depositions and trial to the extent they are employed by Defendant KSC, including accepting service of deposition notices on their behalf and refraining from objecting to such notices on the basis that they are not parties to this action. All other objections by Defendant KSC, however, shall be and hereby are expressly and fully reserved; 5

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4.

The grounds for removing this action to this Court are correct, Plaintiff has waived any objections or challenges to the Court's jurisdiction to hear and decide this action, and the Court has jurisdiction to hear and decide this action, but Plaintiff has not waived any related argument or opposition which might be relevant to the grounds for the Pending Motion; and

5.

The Pending Motion shall remain on calendar for hearing by the Court on November 14, 2008, and shall be and hereby is deemed to be filed and brought solely by and on behalf of Defendant KSC against the FAC as amended by this Stipulation and Order.

IT IS SO ORDERED.

14 Dated: __________________ 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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________________________________ HON. SUSAN Y. ILLSTON UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER REGARDING DISMISSAL AND SUBSTITUTION OF NAMED DEFENDANTS