Whitehurst et al v. Bank of America Corporation et al

Filing 60

STIPULATION AND ORDER re 59 Order Dismissing Case, Terminated Case. Signed by Magistrate Judge Maria-Elena James on 4/27/2015. (rmm2S, COURT STAFF) (Filed on 4/27/2015)

1 Todd O. Maiden (SBN 123524)
Email: [e-mail]
2 Phillip H. Babich (SBN 269577)
Email: [e-mail]
3 REED SMITH LLP
101 Second Street, Suite 1800
4 San Francisco, CA 94105
Telephone:
[phone]
[phone]
5 Facsimile:
6 Attorneys for Defendant,
Counterclaimant, and Crossclaimant
7 BANK OF AMERICA, N.A.

NORTHERN DISTRICT OF CALIFORNIA

10

REED SMITH LLP

UNITED STATES DISTRICT COURT

9

A limited liability partnership formed in the State of Delaware

8

SAN FRANCISCO DIVISION

11 RICHARD G. WHITEHURST and LORRAINE
D. WHITEHURST, as individuals and as trustees
12 of the Whitehurst Family Trust,
13
14

Plaintiffs,
vs.

STIPULATION OF DISMISSAL WITH
PREJUDICE AND [PROPOSED] ORDER
OF DISMISSAL
FRCP 41(a)(2)

15 BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking corporation;
16 CHARLOTTE A. HEINL, as an individual dba
Norge Cleaners; and DOES 1 through 100,
17
Defendants.
18
BANK OF AMERICA, NATIONAL
19 ASSOCIATION, a national banking corporation,

Compl. Filed:
FAC Filed:

Counterclaimant,

20
21

No.: C 09-04808 MEJ

vs.

22 RICHARD G. WHITEHURST and LORRAINE
D. WHITEHURST, as individuals and as trustees
23 of the Whitehurst Family Trust; and ROES 1
through 100,
24
Counterdefendants.
25
26
27
28
C09-04808 MEJ

-1STIPULATION OF DISMISSAL WITH PREJUDICE

October 8, 2009
December 11, 2009

1
BANK OF AMERICA, NATIONAL
2 ASSOCIATION, a national banking corporation,
Crossclaimant,

3
4

vs.

5 CHARLOTTE A. HEINL; and ZOES 1 through
100,
6
Crossdefendants.
7
8
9

Richard G. Whitehurst and Lorraine D. Whitehurst, as individuals and as trustees of the

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10 Whitehurst Family Trust (collectively “Whitehurst”); defendant Bank of America, National
11 Association, a national banking association (the “Bank”); and Charlotte A. Heinl, deceased, an
12 individual and dba Norge Cleaners by and through her insurance company the Chicago Insurance
13 Company, one of the Fireman’s Fund Insurance Companies, (“Fireman’s Fund” or “Heinl” and
14 together with Whitehurst and the Bank as “Parties”) have settled this action. (See Order Granting
15 Motion for Determination of Good Faith Settlement (April 14, 2015) [Dkt. No. 54].) A true and
16 correct copy of the Settlement Agreement and the First Amendment to the Settlement Agreement
17 (together the “Settlement Agreement”), which the parties agree are both enforceable, are attached to
18 this stipulation as Exhibits A and B, respectively.
19

The Parties HEREBY STIPULATE through their designated counsel that the entire above-

20 captioned action be and hereby is dismissed with prejudice pursuant to FRCP 41(a)(2) and the
21 Settlement Agreement. The Parties request that the Court retain jurisdiction to enforce the terms and
22 conditions of the Settlement Agreement and, therefore, respectfully request that the Court
23 incorporate the Settlement Agreement in its Order of Dismissal. “Parties who wish to retain the
24 court’s jurisdiction to enforce their settlement agreement may do so . . . by incorporating the terms
25 of the settlement agreement in the order of dismissal. In [that] event, breach of the settlement
26 agreement violates the court’s order, thereby creating ancillary jurisdiction to enforce the
27 agreement.” See Cal. Prac. Guide: Fed. Civ. Pro. Before Trial, Ch. 15-C, § 15:141.1 (The Rutter
28 Group 2011) (emphasis in original) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.
C09-04808 MEJ
-2STIPULATION OF DISMISSAL WITH PREJUDICE

1 375, 381 (1994), Hagestad v. Tragesser, 49 F.3d 1430, 1432 (9th Cir. 1995), and Hill v. Baxter
2 Healthcare Corp., 405 F.3d 572, 576-577 (7th Cir. 2005)). “[T]he court clearly has ancillary
3 jurisdiction to enforce its own orders and decrees. . . . Therefore, to the extent the settlement is
4 embodied in the judgment, the court can enforce it by execution and by contempt proceedings in
5 appropriate cases.” Id., § 15:141.18 (citing TNT Marketing, Inc. v. Agresti, 796 F.2d 276, 278 (9th
6 Cir. 1986)).
7

By signing below, counsel certify that they have the authority to bind, and are binding, the

8 party or parties that they are signing on behalf of.
9

REED SMITH LLP

A limited liability partnership formed in the State of Delaware

10

Paladin Law Group® LLP

Reed Smith LLP

By: /s/ John R. Till
John R. Till
12 Attorney for Whitehurst
Date: April 24, 2015
13

By: /s/ Todd O. Maiden
Todd O. Maiden
Attorney for Bank of America, NA
Date: April 24, 2015

11

14
15

Wood, Smith, Henning & Berman LLP

By: /s/ David F. Wood
David F. Wood
17 Attorney for Heinl
Date: April 24, 2015
18
16

[PROPOSED] ORDER OF DISMISSAL
19
20 The Court orders that this action shall be and hereby is dismissed with prejudice and with mutual
21 waivers of costs pursuant to Federal Rule of Civil Procedure 41(a)(2) and the Court retains
22 jurisdiction to enforce the parties’ Settlement Agreement, see Exhibits A and B, which the Court
23 incorporates herein.
24 IT IS SO ORDERED.
25
DATED: April 27, 2015
26
27
28
C09-04808 MEJ

———————————————
Maria-Elena James
United States Magistrate Judge
-3STIPULATION OF DISMISSAL WITH PREJUDICE