Friends of Oceano Dunes, Inc. v. Salazar et al

Filing 45

STIPULATION AND ORDER RE SETTLEMENT re 44 STIPULATION WITH PROPOSED ORDER Regarding Settlement filed by Ken Salazar. Signed by Judge Edward M. Chen on 1/24/12. (bpf, COURT STAFF) (Filed on 1/24/2012)

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1 2 3 MELINDA HAAG, (CSBN 132612) United States Attorney JOANN M. SWANSON (CABN 88143) Chief, Civil Division JUAN D. WALKER (CSBN 208008) Assistant United States Attorney 4 5 6 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6915 Fax: (415) 436-6927 7 Attorneys for Federal Defendants 8 9 10 11 THOMAS D. ROTH (CSBN 208601) Law Offices of Thomas D. Roth One Market, Spear Tower, Suite 3600 San Francisco, California 94105 Telephone: (4 15) 293-7684 Facsimile: (415) 435-2086 Email: 12 13 Attorneys for Plaintiff FRIENDS OF OCEANO DUNES, INC. 14 UNITED STATES DISTRICT COURT 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN FRANCISCO DIVISION 17 FRIENDS OF OCEANO DUNES, INC. 18 Plaintiff, 19 v. 20 KEN SALAZAR, et al. 21 Defendants. 22 ) ) ) ) ) ) ) ) ) ) Case No. C 11-1476 EMC STIPULATION AND [PROPOSED] ORDER REGARDING SETTLEMENT 23 Plaintiff FRIENDS OF OCEANO DUNES, INC. (“Plaintiff”) and Defendants KEN 24 SALAZAR, in his official capacity as Secretary of the Interior; ROWAN GOULD, in his official 25 capacity as Director, U.S. Fish and Wildlife Service, U.S. DEPARTMENT OF THE INTERIOR, 26 and the UNITED STATES FISH AND WILDLIFE SERVICE (collectively “Defendant”), by and 27 28 STIPULATION AND [PROPOSED] ORDER REGARDING SETTLEMENT C 11-1476 EMC 1 through their undersigned counsel, hereby enter into this Stipulation and [Proposed] Order Re 2 Settlement and Dismissal With Prejudice (the “Stipulation”) as follows: 3 1. Defendant shall pay to Plaintiff the amount of twenty-five thousand five hundred 4 fifty-five U.S. dollars and eleven cents ($25,551.11) in full and complete satisfaction of 5 Plaintiff’s claims for attorneys’ fees, costs, and litigation expenses under the Freedom of 6 Information Act (“FOIA”) in the above-captioned matter (the “Settlement Amount”). This 7 payment shall constitute full and final satisfaction of any and all of Plaintiff’s claims for 8 attorneys’ fees, costs, and litigation expenses in the above-captioned matter, and is inclusive of 9 any interest. Defendant makes no representation as to any tax consequences or liabilities Plaintiff 10 or its attorney may incur as a result of this settlement. Payment of this money will be made by 11 electronic funds transfer, and Plaintiff’s counsel will provide the necessary information to 12 Defendant’s counsel to effectuate the transfer. Defendant will make all reasonable efforts to 13 make payment within sixty (60) days of the date that Plaintiff’s counsel provides the necessary 14 information for the electronic funds transfer and this Stipulation is approved by the Court, 15 whichever is later, but cannot guarantee payment within that time frame. If Plaintiff is not paid 16 within sixty (60) days of the date that Plaintiff’s counsel provides the necessary information for 17 the electronic funds transfer and this Stipulation is approved by the Court, whichever is later, 18 Plaintiff may re-new his motion for attorney’s fees. 19 20 21 2. Defendant will return Plaintiff’s two uncashed checks in the amount of $1,374.40 and $2,446.60 within thirty (30) days of the date that this Stipulation is approved by the Court. 3. In consideration of the payment of the Settlement Amount and the other terms of 22 this Agreement, Plaintiff shall immediately upon execution of this Agreement also execute a 23 Stipulation of Dismissal, a copy of which is attached hereto as Exhibit A. The Stipulation of 24 Dismissal shall dismiss, with prejudice, all claims asserted in this action, or that could have been 25 asserted in this action. The fully executed Stipulation of Dismissal will be held by Defendant’s 26 attorney and will be filed within five (5) business days of receipt by Plaintiff’s attorney of the 27 Settlement Amount. 28 STIPULATION AND [PROPOSED] ORDER REGARDING SETTLEMENT C 11-1476 EMC 2 4. 1 The parties acknowledge that this Stipulation is entered into solely for the purpose 2 of settling and compromising any remaining claims in this action without further litigation, and it 3 shall not be construed as evidence or as an admission on the part of Defendant, the United States, 4 its agents, servants, or employees regarding any issue of law or fact, or regarding the truth or 5 validity of any allegation or claim raised in this action, or as evidence or as an admission by the 6 Defendant regarding Plaintiff’s entitlement to attorneys’ fees or other litigation costs under 7 FOIA. This Stipulation shall not be used in any manner to establish liability for fees, amounts, or 8 hourly rates in any other case or proceeding involving Defendant. 5. 9 10 This Stipulation is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. 6. 11 If any provision of this Stipulation shall be held invalid, illegal, or unenforceable, 12 the validity, legality, and enforceability of the remaining provisions shall not in any way be 13 affected or impaired thereby. 7. 14 15 The Court shall retain jurisdiction over the parties and the subject matter to enforce the Stipulation. 8. 16 This Stipulation shall constitute the entire agreement between the parties, and it is 17 expressly understood and agreed that this Stipulation has been freely and voluntarily entered into 18 by the parties hereto. The parties further acknowledge that no warranties or representations have 19 been made on any subject other than as set forth in this Stipulation. 9. 20 21 The persons signing this Stipulation warrant and represent that they possess full authority to bind the persons on whose behalf they are signing to the terms of the Stipulation. 10. 22 This Stipulation may not be altered, modified or otherwise changed in any respect 23 except in writing, duly executed by all of the parties or their authorized representatives. 24 // 25 // 26 // 27 28 STIPULATION AND [PROPOSED] ORDER REGARDING SETTLEMENT C 11-1476 EMC 3 1 2 3 11. This Stipulation may be executed in counterparts and is effective on the date by which both parties’ counsel have executed the Stipulation. 4 5 Dated: January 23, 2012 Respectfully Submitted, MELINDA HAAG United States Attorney 6 7 /s/ JUAN D. WALKER1 Assistant United States Attorney Attorneys for Federal Defendant 8 9 10 11 Dated: January 23, 2012 12 LAW OFFICES OF THOMAS D. ROTH /s/ THOMAS D. ROTH Attorneys for Plaintiff 13 14 [PROPOSED] ORDER 15 16 PURSUANT TO STIPULATION, IT IS SO ORDERED. 21 RT 23 25 27 1 . Chen ward M udge Ed J ER H 24 26 United States District Judge NO 22 DERED SO ORCHEN IT IS EDWARD M. R NIA Dated: 1/24/12 A 20 FO 19 S DISTRICT TE C TA RT U O S . UNIT ED 18 LI 17 N F D IS T IC T O R C I, Juan D. Walker, hereby attest, in accordance with the Northern District of California’s General Order No. 45, Section X(B), the concurrence in the filing of this document has been obtained from the other signatory listed on this document. 28 STIPULATION AND [PROPOSED] ORDER REGARDING SETTLEMENT C 11-1476 EMC 4

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