Pete v. City of Oakland et al

Filing 31

ORDER ACCEPTING REQUEST TO WITHDRAW MOTION AND VACATING HEARING. Signed by Judge Alsup on July 20, 2010. (whalc1, COURT STAFF) (Filed on 7/20/2010)

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Pete v. City of Oakland et al Doc. 31 Case3:09-cv-06097-WHA Document30-1 Filed07/20/10 Page1 of 2 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 THOMAS E. MULVIHILL, ESQ. (SBN 129906) JILL P. SAZAMA (SBN 214215) MITOSHI H. FUJIO-WHITE (SBN 252839) Tmulvihill@bjg.com; Jsazama@bjg.com; Mfujio-white@bjg.com BOORNAZIAN, JENSEN & GARTHE A Professional Corporation 555 12th Street, Suite 1800 Oakland, California 94607 Telephone: (510) 834-4350 Facsimile: (510) 839-1897 Attorneys for Defendant Downtown Realty Company, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA GEOFFREY PETE, Plaintiff, v. CITY OF OAKLAND, KYLE THOMAS, MIKE MORSE, DAVID KOZICKI, PEDRO ESPINOZA, DOWNTOWN REALTY COMPANY, INC. AND DOES 3 - 100, Defendants. CASE NO. 3:09-CV-06097-WHA [PROPOSED] ORDER REGARDING DEFENDANT DOWNTOWN REALTY COMPANY, INC.'S REQUEST TO WITHDRAW ITS MOTION TO DISMISS PURSUANT TO RULE 12(b)(5) IN LIGHT OF WAIVER OF SERVICE OF SUMMONS AND VACATING HEARING Complaint Filed: December 31, 2009 Before the Court is defendant DOWNTOWN REALTY COMPANY, INC.'s request to withdraw its Motion to Dismiss pursuant to Rule 12(b)(5) in light of waiver of service of summons. On May 26, 2010, plaintiff GEOFFREY PETE ("Plaintiff") filed a First Amended Complaint, adding DOWNTOWN REALTY COMPANY, INC. ("Defendant" or "DRC") as a Defendant in the instant matter. On June 8, 2010, Plaintiff filed a First Amended (Corrected) Complaint, and the day after, on June 9, 2010, Plaintiff filed a Stipulation and [Proposed] Order Allowing Filing of First Amended Complaint. The Order was granted on June 14, 2010. On July 8, 2010, DRC filed a motion to dismiss the First Amended (Corrected) Complaint for improper service. On July 13, 2010, Defendant executed a Waiver of the Service of Process, allowing DRC -1ORDER RE: DEF. DOWNTOWN REALTY CO., INC.'S WITHDRAWAL OF MOT. TO DISMISS 3:09-CV-06097-WHA Dockets.Justia.com Case3:09-cv-06097-WHA Document30-1 Filed07/20/10 Page2 of 2 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 thirty-three (33) days from the date of acknowledgment of the Waiver for DRC to file and serve a motion under Fed. Rule Civ. Proc. 12 or alternatively an Answer, which was subsequently acknowledged by Plaintiff on July 15, 2010. In consideration of the foregoing, and good cause appearing therefor, the Court hereby orders as follows: (1) Defendant's withdrawal of its motion to dismiss the First Amended (Corrected) Complaint is accepted without prejudice to its ability to file a motion and assert any new or additional arguments that may lie with respect to the First Amended (Corrected) Complaint. (2) Defendant maythe motion is VACATED. under Fed. Rule Civ. Proc. 12 or The hearing on file and serve a motion alternatively an Answer within thirty-three (33) days from the date that acknowledgment of the Waiver was served. IT IS SO ORDERED. UNIT ED S S DISTRICT TE C TA RT U O July 20 DATED: _______________, 2010 ER 26475\509384 N F D IS T IC T O R -2ORDER RE: DEF. DOWNTOWN REALTY CO., INC.'S WITHDRAWAL OF MOT. TO DISMISS 3:09-CV-06097-WHA A C LI FO By: ________________________________ WILLIAM H.liALSUP p am Alsu ge Wil ud United JStates District Judge R NIA VED APPRO NO RT H

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