Johns v. Ng et al

Filing 48

ORDER GRANTING STIPULATED DISMISSAL by Hon. William Alsup granting 46 Stipulation.(whalc1, COURT STAFF) (Filed on 6/10/2013)

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GEOFFREY V. WHITE (SBN. 068012)
LAW OFFICE OF GEOFFREY V. WHITE
351 California St., Suite 1500
San Francisco, California 94104
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff
CARRIE JOHNS

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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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CARRIE JOHNS,

)
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Plaintiff,
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v.
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WALTER NG, individually and as Plan
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fiduciary; BARNEY NG, individually and as )
Plan fiduciary; KELLY NG, individually and )
as Plan fiduciary; BRUCE HORWITZ, M.D., )
individually and as Plan fiduciary; BAR-K,
)
INC., a California corporation; LEND, INC., a )
California Corporation; and BAR-K 401K
)
PLAN.

Case No. C 12-02456 WHA
STIPULATION AND [PROPOSED]
ORDER DISMISSING PLAINTIFF’S
COMPLAINT WITHOUT PREJUDICE

Defendants.

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STIPULATION
WHEREAS, Plaintiff and Defendants have attempted to resolve the issues in the abovecaptioned matter in Mediation sessions on November 30, 2012 and May 9, 2013; and
WHEREAS, the parties, through their undersigned counsel, have reached an agreement to
bifurcate the ERISA and State Law claims in the Complaint; and
WHEREAS, the parties have agreed that it is extremely difficult, if not impossible to

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proceed with the litigation of the ERISA claims (First, Second and Third Claims) in the

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Complaint because of pending parallel Federal government investigations; and
STIPULATION AND PROPOSED ORDER FOR DISMISSAL WITHOUT PREJUDICE

Case No. C 12-02456 WHA

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WHEREAS, the parties have agreed to dismiss said ERISA claims in the Complaint

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without prejudice, subject to a separate tolling agreement for a certain time period during the

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pendency of said Federal government investigations; and

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WHEREAS, the parties have agreed that this Court should exercise its discretion under

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28 U.S.C. Section 1367(c) to also dismiss without prejudice the State law claims in the

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Complaint (Fourth and Fifth Claims), so that Plaintiff may re-file her State law claims in State

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Court, subject to the tolling provisions of 28 U.S.C. Section 1367(d).

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WHEREAS, by agreeing to this Stipulation and permitting the dismissal of the State law
claims subject to the tolling provisions of 28 U.S.C. Section 1367(d), Defendants are not

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intending to revive any claims already barred by any applicable statute of limitations at the time

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this action was filed.

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NOW THEREFORE, the parties, through their undersigned counsel, hereby stipulate as
follows:

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1. The Complaint in the above-captioned matter shall be dismissed without prejudice.

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2. Plaintiff may file her State Law claims in State Court, subject to the tolling provisions

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in 28 U.S.C. Section 1367(d). As provided in 28 U.S.C. Section 1367(d), the statute

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of limitations on Plaintiff’s State law claims shall be tolled for an additional 30 days

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following the entry of this Stipulation and Order, unless State law provides for a

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longer tolling period. Nothing in this Stipulation and Order is intended to revive any

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claims that are otherwise already barred by any applicable statute of limitations.

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IT IS SO STIPULATED.

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DATED: May 21, 2013

LAW OFFICE OF GEOFFREY V. WHITE

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By__/s/_______________________________
Geoffrey V. White
Attorney for Plaintiff
CARRIE JOHNS

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STIPULATION AND PROPOSED ORDER FOR DISMISSAL WITHOUT PREJUDICE

Case No. C 12-02456 WHA

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DATED: May 21, 2013

COOKE, KOBRICK & WU LLP

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By _/s/ (as authorized on May 21, 2013 )___
Christopher C. Cooke
Attorneys for Defendants
BAR-K, INC., BAR-K 401K PLAN, LEND,
INC. AND KELLY NG

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DATED: May 21, 2013

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LAW OFFICE OF ERIK A. HUMBER
By_/s/ (as authorized on May 20, 2013 )
Erik A. Humber
Attorney for Defendant BARNEY NG

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AXCEL LAW PARTNERS LLP

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By _/s/ (as authorized on May 20, 2013 )
Craig C. Daniel
Attorneys for Defendant
BRUCE HORWITZ M.D.

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[PROPOSED] ORDER
Pursuant to the parties’ Stipulation, IT IS SO ORDERED.

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June 10, 2013.
DATED: _____________________

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_________________________________
Honorable William H. Alsup
United States District Judge

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STIPULATION AND PROPOSED ORDER FOR DISMISSAL WITHOUT PREJUDICE

Case No. C 12-02456 WHA

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