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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MELINDA HAAG, (CSBN 132612)
United States Attorney
JOANN M. SWANSON (CABN 88143)
Chief, Civil Division
JUAN D. WALKER (CSBN 208008)
Assistant United States Attorney

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450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
Telephone: [phone]
Fax: [phone]
[e-mail]

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Attorneys for Federal Defendants
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THOMAS D. ROTH (CSBN 208601)
Law Offices of Thomas D. Roth
One Market, Spear Tower, Suite 3600
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Plaintiff
FRIENDS OF OCEANO DUNES, INC.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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FRIENDS OF OCEANO DUNES, INC.
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Plaintiff,
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v.
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KEN SALAZAR, et al.
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Defendants.
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Case No. C 11-1476 EMC
STIPULATION AND [PROPOSED]
ORDER REGARDING SETTLEMENT

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Plaintiff FRIENDS OF OCEANO DUNES, INC. (“Plaintiff”) and Defendants KEN
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SALAZAR, in his official capacity as Secretary of the Interior; ROWAN GOULD, in his official
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capacity as Director, U.S. Fish and Wildlife Service, U.S. DEPARTMENT OF THE INTERIOR,
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and the UNITED STATES FISH AND WILDLIFE SERVICE (collectively “Defendant”), by and
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STIPULATION AND [PROPOSED] ORDER
REGARDING SETTLEMENT
C 11-1476 EMC

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through their undersigned counsel, hereby enter into this Stipulation and [Proposed] Order Re

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Settlement and Dismissal With Prejudice (the “Stipulation”) as follows:

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1.

Defendant shall pay to Plaintiff the amount of twenty-five thousand five hundred

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fifty-five U.S. dollars and eleven cents ($25,551.11) in full and complete satisfaction of

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Plaintiff’s claims for attorneys’ fees, costs, and litigation expenses under the Freedom of

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Information Act (“FOIA”) in the above-captioned matter (the “Settlement Amount”). This

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payment shall constitute full and final satisfaction of any and all of Plaintiff’s claims for

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attorneys’ fees, costs, and litigation expenses in the above-captioned matter, and is inclusive of

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any interest. Defendant makes no representation as to any tax consequences or liabilities Plaintiff

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or its attorney may incur as a result of this settlement. Payment of this money will be made by

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electronic funds transfer, and Plaintiff’s counsel will provide the necessary information to

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Defendant’s counsel to effectuate the transfer. Defendant will make all reasonable efforts to

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make payment within sixty (60) days of the date that Plaintiff’s counsel provides the necessary

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information for the electronic funds transfer and this Stipulation is approved by the Court,

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whichever is later, but cannot guarantee payment within that time frame. If Plaintiff is not paid

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within sixty (60) days of the date that Plaintiff’s counsel provides the necessary information for

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the electronic funds transfer and this Stipulation is approved by the Court, whichever is later,

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Plaintiff may re-new his motion for attorney’s fees.

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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

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this Agreement, Plaintiff shall immediately upon execution of this Agreement also execute a

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Stipulation of Dismissal, a copy of which is attached hereto as Exhibit A. The Stipulation of

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Dismissal shall dismiss, with prejudice, all claims asserted in this action, or that could have been

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asserted in this action. The fully executed Stipulation of Dismissal will be held by Defendant’s

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attorney and will be filed within five (5) business days of receipt by Plaintiff’s attorney of the

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Settlement Amount.

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STIPULATION AND [PROPOSED] ORDER
REGARDING SETTLEMENT
C 11-1476 EMC
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4.

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The parties acknowledge that this Stipulation is entered into solely for the purpose

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of settling and compromising any remaining claims in this action without further litigation, and it

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shall not be construed as evidence or as an admission on the part of Defendant, the United States,

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its agents, servants, or employees regarding any issue of law or fact, or regarding the truth or

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validity of any allegation or claim raised in this action, or as evidence or as an admission by the

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Defendant regarding Plaintiff’s entitlement to attorneys’ fees or other litigation costs under

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FOIA. This Stipulation shall not be used in any manner to establish liability for fees, amounts, or

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hourly rates in any other case or proceeding involving Defendant.
5.

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This Stipulation is binding upon and inures to the benefit of the parties hereto and

their respective successors and assigns.
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If any provision of this Stipulation shall be held invalid, illegal, or unenforceable,

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the validity, legality, and enforceability of the remaining provisions shall not in any way be

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affected or impaired thereby.
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The Court shall retain jurisdiction over the parties and the subject

matter to enforce the Stipulation.
8.

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This Stipulation shall constitute the entire agreement between the parties, and it is

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expressly understood and agreed that this Stipulation has been freely and voluntarily entered into

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by the parties hereto. The parties further acknowledge that no warranties or representations have

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been made on any subject other than as set forth in this Stipulation.
9.

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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.

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This Stipulation may not be altered, modified or otherwise changed in any respect

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except in writing, duly executed by all of the parties or their authorized representatives.

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//

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//

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//

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STIPULATION AND [PROPOSED] ORDER
REGARDING SETTLEMENT
C 11-1476 EMC
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11.

This Stipulation may be executed in counterparts and is effective on the date by which

both parties’ counsel have executed the Stipulation.

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Dated: January 23, 2012

Respectfully Submitted,
MELINDA HAAG
United States Attorney

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/s/
JUAN D. WALKER1
Assistant United States Attorney
Attorneys for Federal Defendant

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Dated: January 23, 2012

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LAW OFFICES OF THOMAS D. ROTH
/s/
THOMAS D. ROTH
Attorneys for Plaintiff

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[PROPOSED] ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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. Chen

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United States District Judge

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DERED
SO ORCHEN
IT IS
EDWARD M.

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Dated: 1/24/12

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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.

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STIPULATION AND [PROPOSED] ORDER
REGARDING SETTLEMENT
C 11-1476 EMC
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