Reis v. United States of America

Filing 18

STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE AND ORDER re 17 STIPULATION WITH PROPOSED ORDER. Signed by Judge William H. Orrick on 08/16/2013. (jmdS, COURT STAFF) (Filed on 8/16/2013)

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MELINDA HAAG (CSBN 132612)
United States Attorney
ALEX TSE (CSBN 152348)
Chief, Civil Division
JAMES A. SCHARF (CSBN 152171)
Assistant United States Attorney

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150 Almaden Blvd., Suite 900
San Jose, California 95113
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for Defendant USA
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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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ROSSANA REIS,
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Plaintiff,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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Case No. C12-04550 WHO
STIPULATION FOR COMPROMISE
SETTLEMENT AND RELEASE AND
ORDER

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It is hereby stipulated by and between the undersigned Plaintiff Rossana Reis (“Plaintiff”)

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and the Defendant UNITED STATES OF AMERICA (“Defendant”), by and through their

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respective attorneys, as follows:

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WHEREAS, the parties participated in a mediation with Brick McIntosh on August 14, 2013,
at which this Stipulation for Compromise Settlement and Release (“agreement”) was reached.

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WHEREAS, Plaintiff and Defendant wish to avoid any further litigation and controversy and

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to settle and compromise fully any and all claims and issues that have been raised, or could have

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been raised in this action, which have transpired prior to the execution of this agreement;

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WHEREAS, the parties intend this to be a full, final and complete settlement that resolves all
claims and potential claims that Plaintiff may have arising out of the subject accident of August

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8, 2011, including but not limited to Plaintiff’s claims and potential claims for physical injuries,

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psychological injuries, past and future medical bills, past and future wage loss and past and

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future pain and suffering resulting from that accident.

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NOW, THEREFORE, in consideration of the mutual promises contained in this agreement,

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and other good and valuable consideration, receipt of which is hereby acknowledged, the parties

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agree as follows:

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1. Agreement to Compromise Claims. The parties do hereby agree to settle and compromise

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each and every claim of any kind, whether known or unknown, arising directly or indirectly from

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the acts or omissions that gave rise to the above-captioned action under the terms and conditions

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set forth in this agreement.

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2. Definition of “United States of America.” As used in this agreement, the United States of

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America shall include its current and former agencies, agents, servants, employees, and attorneys,

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including but not limited to, the United States Postal Service and/or any of its current or former

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agents, servants, employees, and attorneys, including, but not limited to, Gregory Chan.

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3. Settlement Amount. The United States of America agrees to pay the sum of seventy five

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thousand dollars ($75,000.00) (“Settlement Amount”), which sum shall be in full settlement and

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satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and

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nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen

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personal injuries, damage to property and the consequences thereof, resulting, and to result, from

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the subject matter of this settlement, including any potential claims for wrongful death or loss of

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consortium, for which Plaintiff or her guardians, heirs, executors, administrators, or assigns, and

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each of them, now have or may hereafter acquire against the United States of America.

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4. Release. Plaintiff and her guardians, heirs, executors, administrators or assigns hereby

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agrees to accept the Settlement Amount in full settlement and satisfaction of any and all claims,

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demands, rights, and causes of action of whatsoever kind and nature, including potential claims

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for wrongful death or loss of consortium, arising from, and by reason of any and all known and

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unknown, foreseen and unforeseen personal injuries, damage to property and the consequences
STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE AND [PROPOSED]
ORDER
Case No. C12-04550 WHO
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thereof which they may have or hereafter acquire against the United States of America on

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account of the same subject matter that gave rise to the above-captioned action, including any

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future claim or lawsuit of any kind or type whatsoever, whether known or unknown, and whether

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for compensatory or exemplary damages. Plaintiff and her guardians, heirs, executors,

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administrators or assigns further agrees to reimburse, indemnify and hold harmless the United

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States of America from and against any and all such causes of action, claims, liens, rights, or

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subrogated or contribution interests incident to or resulting from further litigation or the

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prosecution of claims by Plaintiff or her guardians, heirs, executors, administrators or assigns

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against any third party or against the United States.

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5. Dismissal of Action. In consideration of the payment of the Settlement Amount and the

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other terms of this Settlement Agreement, Plaintiff’s attorney shall also execute and provide to

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Defendant’s attorney a Stipulation of Dismissal. The Stipulation of Dismissal shall dismiss, with

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prejudice, all claims asserted in this action, or that could have been asserted in this action. The

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fully executed Stipulation of Dismissal will be filed within five (5) business days of receipt by

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Plaintiff’s attorney of the Settlement Amount.

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6. No Admission of Liability. This stipulation for compromise settlement is not, is in no

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way intended to be, and should not be construed as, an admission of liability or fault on the part

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of the United States, and it is specifically denied that it is liable to the Plaintiff. This settlement

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is entered into by all parties for the purpose of compromising disputed claims and avoiding the

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expenses and risks of further litigation.

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7. Parties Bear Their Own Costs. It is also agreed, by and among the parties, that the

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respective parties will each bear their own costs, fees, and expenses and that any attorney's fees

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owed by the Plaintiff will be paid out of the Settlement Amount and not in addition thereto.

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8. Attorney’s Fees. It is also understood by and among the parties that pursuant to Title 28,

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United States Code, Section 2678, attorney's fees for services rendered in connection with this

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action shall not exceed 25 per centum of the amount of the compromise settlement.

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ORDER
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9. Authority. The persons signing this agreement warrant and represent that they possess full

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authority to bind the persons on whose behalf they are signing to the terms of the settlement.

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10. Waiver of California Civil Code § 1542. The provisions of California Civil Code

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Section 1542 are set forth below:

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"A general release does not extend to claims which the creditor does not know or

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suspect to exist in his or her favor at the time of executing the release, which if

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known by him or her must have materially affected his or her settlement with the

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debtor."

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Plaintiff having been apprised of the statutory language of Civil Code Section 1542 by her

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attorney, and fully understanding the same, nevertheless elects to waive the benefits of any and

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all rights she may have pursuant to the provision of that statute and any similar provision of

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federal law. Plaintiff understands that, if the facts concerning Plaintiff’s injury and the liability

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of the government for damages pertaining thereto are found hereinafter to be other than or

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different from the facts now believed by them to be true, the agreement shall be and remain

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effective notwithstanding such material difference.

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11. Payment by Check. Payment of the Settlement Amount will be made by check for

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seventy five thousand dollars ($75,000.00) payable to Rossana Reis, Plaintiff, and her attorneys,

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Law Offices of Joseph W. Campbell. The check will be sent via federal express to Joseph W.

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Campbell, 1301 Marina Village Parkway, Suite 330, Alameda, CA 94501. Plaintiff's attorneys

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agree to distribute the settlement proceeds to the Plaintiff. Plaintiff and her attorney have been

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informed that payment of the Settlement Amount may take sixty (60) days or more to process

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from the date that the Court “so orders” this agreement. To facilitate the check request, upon

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request, Plaintiff’s attorneys will provide Defendant’s attorney with plaintiff’s Social Security

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Number and their Tax Identification Number.

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12. Tax Liability. If any withholding or income tax liability is imposed upon Plaintiff based

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on payment of the Settlement Amount, Plaintiff shall be solely responsible for paying any such

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determined liability from any government agency. Nothing in this Settlement Agreement

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constitutes an agreement by the United States of America concerning the characterization of the
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ORDER
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Settlement Amount for the purposes of the Internal Revenue Code, Title 26 of the United States

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Code.
13. Construction. Each party hereby stipulates that it has been represented by and has relied

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upon independent counsel in the negotiations for the preparation of this agreement, that it has had

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the contents of the agreement fully explained to it by such counsel, and is fully aware of and

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understands all of the terms of the agreement and the legal consequences thereof. For purposes

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of construction, this agreement shall be deemed to have been drafted by all parties to this

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agreement and shall not, therefore, be construed against any party for that reason in any

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subsequent dispute. Plaintiff further represents that she read a draft of this agreement on her

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computer before the mediation and that the contents of this agreement were also explained to her

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by her attorney at the mediation with the assistance of a sign language interpreter.
14. Severability. If any provision of this agreement shall be invalid, illegal, or

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unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in

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any way be affected or impaired thereby.
15. Integration. This instrument shall constitute the entire agreement between the parties,

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and it is expressly understood and agreed that the agreement has been freely and voluntarily

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entered into by the parties hereto with the advice of counsel, who have explained the legal effect

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of this agreement. 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 agreement. This agreement may not be

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altered, modified or otherwise changed in any respect except by writing, duly executed by all of

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the parties or their authorized representatives.

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16. Liens. Plaintiff is responsible for satisfying any and all outstanding liens arising out of

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the subject matter of this action, including but not limited to the Healthcare Recoveries (Kaiser)

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lien. Plaintiff shall indemnify and hold harmless Defendant from any liability Defendant may

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incur from any lien claimant arising out of any failure by Plaintiff to satisfy the outstanding liens.

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17. Defendant will waive request for reimbursement of cancellation fees.

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DATED: August 14, 2013

____________/S/____________________
ROSSANA REIS,
Plaintiff

DATED: August 14, 2013

____________/S/____________________
JOSEPH W. CAMPBELL
ELIZABETH B. MORENO
Attorneys for Plaintiff

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MELINDA HAAG
United States Attorney

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DATED: August 14, 2013

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____________/S/____________________
JAMES A. SCHARF
Assistant United States Attorneys
Attorneys for Defendant

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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August 16, 2013
DATED: _________________

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HON. WILLIAM H. ORRICK
United States District Court Judge

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STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE AND [PROPOSED]
ORDER
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