Fotinos v. Sills et al

Filing 49

ORDER by Chief Magistrate Judge Maria-Elena James granting 47 Stipulation to Vacate Default of Defendnat David Boyes. (rmm2S, COURT STAFF) (Filed on 11/9/2012)

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STEPHEN J. SHERMAN, (State Bar No. 142358)
HALVERSON & ASSOCIATES
57 Post Street. Suite 900
San Francisco. CA 94104
Telephone [phone]
Facsimile [phone]
Attorneys for Defendant
DAVID BOYES

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION
MICHELLE FOTINOS, individually and as
guardian ad litem on behalf of R. F .. a minor
child.

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) Case No. CV -12-03828 MEJ
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) STIPULATION AND lei@
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ORDER TO VACATE DEFAULT OF
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Plaintiff,
) DEFENDANT DAVID BOYES
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v.
) Judge: Hon. Marie-Elena James
Chief Magistrate Judge
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LAURIE SILLS, in her individual and official )
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capacities, DAVID BOYES. and DOES I
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through I 0, inclusive,
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Defendants.

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STIPIIUTION AND (PROPOSED( ORDER TO VA(:An: DU'AIII.T m· DEFF.NIJANT IJAVIIJ BOVt:S

Caso No. CV-I2~J8l8 MEJ

STIPULATION

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Plaintiff MICHELLE FOTINOS, individually and as guardian ad litem on behalf of R.F ..

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a minor child and Defendant David Boyes, by and through their respective counsel, hereby enter

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into this stipulation to vacate any default entered into against Defendant BOYES and allow

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Defendant to file a responsive pleading to Plaintiffs' Complaint.

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WHEREAS, on or about July 23.2012. Plaintiff filed her Complaint and Demand for
Jury Trial in this matter;

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WHEREAS, on the afternoon of October 12.2012, Stephen Sherman, counsel for
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Defendant, left a detailed telephone message for Patricia Barry, counsel for Plaintiff. indicating
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that Defendant had recently retained his firm as counsel. inquiring about the status of service,
and requesting a brief continuance in order to file a timely responsive pleading to Plaintiff's
Complaint;
WHEREAS, Plaintiffs' counsel did not receive the telephone message from Defendant's

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counsel until October 13, 20 12;
WHEREAS, on the evening of October 12, 2012, following the telephone message from

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Defendant's counsel, Plaintitrs counsel prepared and submitted to this Court documents in

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support of an entry of default against Defendant;
WHEREAS, on November I, 2012, this Court is scheduled to hear a Motion to Dismiss

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Plaintiff's Complaint by Defendant LAURIE SILLS and Plaintiff's opposition has included a

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request for leave to amend her Complaint;

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WHEREAS, the interests of justice and judicial economy would be served to allow

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Defendant BOYES to file a responsive pleading to Plaintitrs Complaint and such a response

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should await this Court's determination of the pending Motion to Dismiss;

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Ill
Ill

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!iTIPIILATION AND fPROPOSEDf ORDt:R TO VACATF. DEFAIII.T OF DEFF.NDANT DAVID BOYF.S

Case No. CV-12..03818 MEJ

TilE PARTIF.S HE REilY STIPULATE to the following:
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The Entry of Dt:fault Against Defendant David Boyes be vacated by this Court.
Defendant David Boyes be allowed to tile a n:sponsive pleading to l'laintitl's

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original ( 'omplaim v.ithin

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days of this Court's det:ision to deny the pending Motion to

Dismis~.

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Defendant David Hnyes he allowed tile a timely responsive pleading to Plaintiffs

!'irs\ ,\n1.:ndcd Complaint in the event this Court gmnts the pending Motion to Dismiss with
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leave to amend.
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Dated: October

::J 2012

HALVERSON &_f\SBOCIATliS

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Dated: O.:toher :__!.:. :!0 12

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,:...J/L'L--,.

Patricia J. Harr). Es4.
Attorneys lor Plaintift=l
MICHELLF I'OTINOS

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ORDER
ll<l\"Jilg considered the above stipulation of the parties and good cause appearing.
IT IS SO OROI·:RED.

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November 9 2012

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Dated: October ___ , 1012

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Hon. Marie-Elena James-·
Chief Magistrate Judge

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ISTIPl

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L>\TIO~ .\.'IV

(PROPOSE OJ ORDER TO VACATE DHAl'LT Ot"flf.FF:NDANT DAVID BOYES