Long Haul, Inc. et al v. Regents of the University of California et al

Filing 72

ORDER Granting 70 Stipulation of Dismissal of First Amendment Claims Against University Defendants. Signed by Judge Jeffrey S. White on December 22, 2009. (jswlc1, COURT STAFF) (Filed on 12/22/2009)

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SCHIFF HARDIN LLP William J. Carroll (CSB #118106) [e-mail] Larry B. Garrett (CSB #225192) [e-mail] One Market, Spear Street Tower Thirty-Second Floor San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants VICTORIA HARRISON, KAREN ALBERTS, WILLIAM KASISKE, WADE MACADAM, TIMOTHY J. ZUNIGA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA LONG HAUL, INC., and EAST BAY PRISONER SUPPORT, Plaintiff, v. VICTORIA HARRISON; KAREN ALBERTS; WILLIAM KASISKE; WADE MACADAM; TIMOTHY J. ZUNIGA; et al., Defendants. Case No. 3:09-cv-0168 JSW STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF FIRST AMENDMENT CLAIMS AGAINST UNIVERSITY DEFENDANTS

RECITALS A. Plaintiffs Long Haul, Inc. ("Long Haul") and East Bay Prisoner Support

have brought the above-captioned action alleging various claims arising out of, inter alia, the execution of a search warrant at the Long Haul premises on August 27, 2008. B. In Count I of Plaintiffs' First Amended Complaint, Plaintiffs alleged a First

Amendment violation against the University Defendants and the Federal Defendants. C. against them. -1CASE NO. 3:09-CV-0168 JSW STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF FIRST AMENDMENT CLAIMS AGAINST UNIVERSITY DEFENDANTS

The Federal Defendants moved to dismiss this First Amendment claim

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D.

In its Order dated November 30, 2009, the Court granted the Federal

Defendants' motion to dismiss the First Amendment claims, with leave to amend. The Court stated that Plaintiffs had failed to alleged that the purpose of Defendants' conduct was retaliatory or aimed to chill Plaintiffs' First Amendment activities. The Court provided Plaintiffs leave to amend to plead the requisite facts to show that Defendants acted with the impermissible motive of retaliating against Plaintiffs or curbing their First Amendment activities. (Order of November 30, 2009, Dkt. 69, at 11). E. Counsel for Plaintiffs and for the University Defendants have met and

conferred regarding the Court's November 30, 2009 Order and the First Amendment claims asserted in the First Amended Complaint against the University Defendants. Plaintiffs' counsel has indicated that Plaintiffs do not intend to file a Second Amended Complaint. F. In the interests of judicial economy and to avoid further motion practice on

this issue, counsel for Plaintiffs and the University Defendants have agreed to a stipulation whereby Plaintiffs will not object to the Court entering an order dismissing the First Amendment claims against the University Defendants, on the same grounds that it has previously ordered dismissal of that claim against the Federal Defendants. G. In agreeing to this stipulation, Plaintiffs expressly reserve any and all rights

to appeal the Court's dismissal of their First Amendment claims against the University Defendants. Plaintiffs agree to this stipulation in order to move the litigation forward and in the interests of judicial economy, but do not intend for this stipulation to act as a waiver of any right to appeal this issue. The University Defendants agree and acknowledge that they shall not assert any such waiver arising out of this stipulation and order dismissing said First Amendment claims. STIPULATION The parties, through their attorneys of record, hereby stipulate as follows: 1. Plaintiffs and the University Defendants acknowledge and agree that the

Court's rationale in dismissing the First Amendment claims alleged by the Federal -2CASE NO. 3:09-CV-0168 JSW
STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF FIRST AMENDMENT CLAIMS AGAINST UNIVERSITY DEFENDANTS

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Defendants in the First Amended Complaint applies with equal force to the First Amendment claims alleged by the University Defendants. 2. Plaintiffs do not object to an order dismissing the First Amendment claims

asserted against the University Defendants in the First Amended Complaint on the same basis as the Court's November 30, 2009 Order dismissing the First Amendment claims against the Federal Defendants. Each party shall bear their own respective fees and costs. 3. Plaintiffs expressly reserve their right to appeal the Court's dismissal of

their First Amendment claims against the University Defendants. The University Defendants agree and acknowledge that they shall not assert any such waiver arising out of this stipulation and order dismissing said First Amendment claims.

Dated: December 17, 2009 /s/ William J. Carroll SCHIFF HARDIN LLP W ILLIAM J. CARROLL (CSB #118106) [e-mail] LARRY B. GARRETT (CSB #225192) [e-mail] One Market, Spear Street Tower Thirty-Second Floor San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] COUNSEL FOR DEFENDANTS VICTORIA HARRISON, KAREN ALBERTS, WILLIAM KASISKE, WADE MACADAM, TIMOTHY J. ZUNIGA /s/ Jennifer S. Granick ELECTRONIC FRONTIER FOUNDATION JENNIFER S. GRANICK (CSB #168423) 454 Shotwell Street San Francisco, CA 94110 Telephone: [phone] x134 Facsimile: [phone] COUNSEL FOR PLAINTIFFS

GENERAL ORDER NO. 45(X) CERTIFICATION I attest that I have obtained the concurrence of Jennifer S. Granick in the filing of -3CASE NO. 3:09-CV-0168 JSW

STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF FIRST AMENDMENT CLAIMS AGAINST UNIVERSITY DEFENDANTS

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this document. /s/ William J. Carroll William J. Carroll

ORDER For the reasons set forth in the Order dated November 30, 2009, the Court hereby dismisses Plaintiffs' First Amendment claims against the University Defendants. The factual allegations asserted in support of the First Amendment claims against the University Defendants are, like those alleged against the Federal Defendants, insufficient to support a claim under the First Amendment. Accordingly, the Court finds that Plaintiffs have not alleged sufficient facts in their First Amended Complaint to state a claim under the First Amendment against the University Defendants. PURSUANT TO STIPULATION, IT IS SO ORDERED. December 22, 2009 Dated: __________________

Hon. Jeffrey S. White United States District Judge

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STIPULATION AND [PROPOSED] ORDER RE: DISMISSAL OF FIRST AMENDMENT CLAIMS AGAINST UNIVERSITY DEFENDANTS