Pace et al v. Bonham et al

Filing 66

STIPULATION AND ORDER (AS MODIFIED) RESOLVING PENDING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION re 64 STIPULATION WITH PROPOSED ORDER. Plaintiff's 63 MOTION for Leave to File a Motion for Reconsideration is GRANTED. The C ourt VACATES its September 30, 2013, Order Granting Motion to Strike. If any party wishes to be heard regarding the Court's modification of the Stipulation, it should advise Ms. Jean Davis, Courtroom Deputy, on or before the close of business on Friday, November 1, 2013. Signed by Judge William H. Orrick on 10/29/2013. (jmdS, COURT STAFF) (Filed on 10/29/2013)

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KAMALA D. HARRIS
Attorney General of California
ANNADEL A. ALMENDRAS
TRACY L. WINSOR
Supervising Deputy Attorneys General
RUSSELL B. HILDRETH (SBN 166167)
MARC N. MELNICK (SBN 168187)
Deputy Attorneys General
1515 Clay Street, 20th Floor
P.O. Box 70550
Oakland, CA 94612-0550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Defendants Charlton H. Bonham and
Stafford Lehr

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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FELICE PACE; WILDERNESS WATCH,

Case No. C-12-5610-WHO-NJV

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v.
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Plaintiffs, STIPULATION AND ORDER
RESOLVING PENDING MOTION FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION

CHARLTON H. BONHAM; STAFFORD LEHR,

Dept:
Judge:
Defendants. Trial Date:
Action Filed:

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Honorable W.H. Orrick
None Set
November 1, 2012

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STIP. & ORDER RESOLVING CASE (No. C-12-5610-WHO-NJV)

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On October 25, 2013, Plaintiffs Felice Pace and Wilderness Watch filed a Motion for Leave
to File a Motion for Reconsideration of the Court’s September 30, 2013, Order Granting Motion
to Strike. The Court’s Order Granting Motion to Strike resolved defendants Charlton H. Bonham
and Stafford Lehr’s Motion to Dismiss or Strike Portions of Second Amended Complaint (filed
May 10, 2013). Defendants oppose Plaintiffs’ pending motion.

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In order to resolve Plaintiffs’ pending motion, resolve this case in an efficient manner, and
facilitate decision and review of the substantive issue decided by the Court’s Order Granting
Motion to Strike, the parties agree to the following:

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1.

granted, Plaintiffs’ pending Motion for Leave to File a Motion for Reconsideration should be
treated as a motion for reconsideration, and reconsideration should be granted on the procedural
question of whether a motion to strike should have been granted.

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2.

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transport, the drop, or because these stocked fish do not feed or survive well after stocking.”
found in paragraph 10 at lines 4 to 5 of page 4 is stricken from the Second Amended Complaint.
3.

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Reconsideration granted, Defendants’ Motion to Dismiss or Strike Portions of Second

Amended Complaint will be pending before the Court. That motion shall be treated as a motion
under Rule 12(b)(6) to dismiss all the allegations in the Second Amended Complaint (as modified
by agreement of the parties in paragraph 2 above). The parties respectfully request that the Court
rule on that motion based on the papers already filed, although they will submit additional
briefing and/or appear at a hearing if the Court requests.

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Any allegations about dead fish are removed from this case, and specifically the

sentence “Mortality rates from the aerial stocking of fish often approach 50%, as a result of

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Plaintiffs’ pending Motion for Leave to File a Motion for Reconsideration should be

4.

While Plaintiffs do not agree with the Court’s substantive ruling in its Order Granting

Motion to Strike (and preserve their right to challenge that ruling), the parties understand that that
substantive ruling applied to a pending motion to dismiss would likely mean the Court would
grant Defendants’ motion to dismiss the Second Amended Complaint.
///

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1.
STIP. & ORDER RESOLVING CASE (No. C-12-5610-WHO-NJV)

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///
5.

Given these stipulations, and to efficiently and effectively resolve this case and place

it in a posture for appeal, the parties respectfully request that the Court enter the following order.
IT IS SO STIPULATED.

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Dated: October 29, 2013

Respectfully Submitted,

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WESTERN ENVIRONMENTAL LAW CENTER
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/s/ Peter M.K. Frost (as authorized)

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PETER M.K. FROST
Attorneys for Plaintiffs Felice Pace and
Wilderness Watch

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KAMALA D. HARRIS
Attorney General of California
ANNADEL A. ALMENDRAS
TRACY L. WINSOR
Supervising Deputy Attorneys General
RUSSELL B. HILDRETH
Deputy Attorney General

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/s/ Marc N. Melnick
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MARC N. MELNICK
Deputy Attorney General
Attorneys for Charlton H. Bonham and
Stafford Lehr

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PURSUANT TO STIPULATION, as modified, and GOOD CAUSE APPEARING, the
Court orders as follows:
1.

On or before November 4, 2013, Plaintiffs shall file a "Second Amended Complaint
(Revised)" which deletes the sentence “Mortality rates from the aerial stocking of fish
often approach 50%, as a result of transport, the drop, or because these stocked fish
do not feed or survive well after stocking,” found in paragraph 10 at lines 4 to 5 of
page 4 in the Second Amended Complaint. In all other respects, the Second
Amended Complaint (Revised) shall remain the same as the Second Amended
Complaint.

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2.
STIP. & ORDER RESOLVING CASE (No. C-12-5610-WHO-NJV)

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GRANTED. The Court VACATES its September 30, 2013, Order Granting Motion

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to Strike.
3.

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applicable to the Second Amended Complaint (Revised), will treat the motion as if it

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were a motion to dismiss all of the allegations in the Second Amended Complaint

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(Revised) under Rule 12(b)(6), and will rule on said motion to dismiss without further

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The Court will consider Defendants’ previously filed Motion to Dismiss or Strike
Portions of the Second Amended Complaint, and the briefs filed by all parties, as

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Plaintiffs’ pending Motion for Leave to File a Motion for Reconsideration is

briefing or argument of counsel.
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If any party wishes to be heard regarding the Court's modification of the Stipulation,
it should advise Ms. Jean Davis, Courtroom Deputy, on or before the close of
business on Friday, November 1, 2013.

IT IS SO ORDERED.
DATED: October 29, 2013

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____________________________________
WILLIAM H. ORRICK
U.S. District Judge

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OK2011202302
90354879.doc

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3.
STIP. & ORDER RESOLVING CASE (No. C-12-5610-WHO-NJV)