Holzhauer v. Rhoades

Filing 25

STIPULATION AND ORDER re 24 STIPULATION WITH PROPOSED ORDER Extending Time to Add Party filed by Mary Holzhauer. Signed by Judge Jon S. Tigar on February 28, 2014. (wsn, COURT STAFF) (Filed on 2/28/2014)

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1 2 3 4 5 6 7 8 9 10 11 12 13 BRODSKY MICKLOW BULL & WEISS LLP Edward M. Bull III, State Bar No. 141996 Kurt Micklow, State Bar No. 113974 384 Embarcadero West, Suite 200 Oakland, California 94607 Telephone: (510) 268-6180 Facsimile: (510) 268-6181 Attorneys for Plaintiff MARY HOLZHAUER, Individually and as the Personal Representative of HARRY HOLZHAUER (DECEASED) Rex M. Clack, Esq. (SBN 59237) David E. Russo, Esq. (SBN 112023) STERLING & CLACK A Professional Corporation 601 Van Ness Avenue, Suite 2018 San Francisco, California 94102 Telephone: (415) 543-5300 Facsimile: (415) 543-3335 Attorneys for Defendant GOLDEN GATE BRIDGE, HIGHWAY & TRANSPORTATION DISTRICT 14 15 16 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 17 18 19 20 21 22 23 24 25 26 27 MARY HOLZHAUER, Individually and as the Personal Representative of HARRY HOLZHAUER, DECEASED, ) ) ) ) Plaintiff, ) ) v. ) ) DAVID P. RHOADES, an Individual, GOLDEN ) GATE BRIDGE HIGHWAY AND ) TRANSPORTATION DISTRICT, a governmental ) entity, and and DOES 1-10, Inclusive, ) ) Defendants. ) ) __________________________________________ ) Case No. 3:13-cv-02862 - JST STIPULATION AND [PROPOSED] ORDER EXTENDING TIME TO ADD PARTY 28 1 STIPULATION & ORDER EXTENDING TIME TO ADD PARTY CASE NO. 3:13-cv-02862 - JST 1 Plaintiff MARY HOLZHAUER, Individually and as the Personal Representative of HARRY 2 HOLZHAUER (DECEASED) (“Plaintiff”), Defendant GOLDEN GATE BRIDGE, HIGHWAY & 3 TRANSPORTATION DISTRICT (the “District’), and former Defendant David P. Rhoades 4 (“Rhoades”), respectfully submit the following stipulation and proposed order to allow additional 5 time to add Rhoades as a defendant herein as follows: 6 7 8 9 10 WHEREAS Rhoades was originally named as a defendant herein before the District was named and appeared herein; and WHEREAS Plaintiff voluntarily dismissed Rhoades from this action (without prejudice) on October 24, 2013; and WHEREAS the parties advised that Court in their Joint Case Management Conference 11 Statement (Doc. No. 19) that in regard to Amendment of Pleadings, no new parties or amended 12 pleadings were currently anticipated by the parties other than the fact that depending on the results 13 of preliminary discovery (including the deposition of Mr. Rhoades) and the completion of the Coast 14 Guard investigation, Plaintiff might need to re-name Rhoades as a party to the action; and 15 16 17 18 19 WHEREAS the Court in its Scheduling Order (Doc. No. 20) set the last day to add parties or amend pleading for February 28, 2014; and WHEREAS the Court also set other dates, including discovery cut-off for July 3, 2014, dispositive motions for September 26, 2014, and trial for January 5, 2015; and WHEREAS the parties and Rhoades are cooperating to complete the deposition of Rhoades 20 and other key witnesses with personal knowledge of the cause of the accident, and are exchanging 21 documents and other evidence, as of this date Mr. Rhoades has not been deposed, the Coast Guard 22 has not issued its report, and Plaintiff does not have sufficient information available to allow the 23 Court’s deadline to pass and not file her claim against Rhoades; and 24 WHEREAS Plaintiff believes that the on-going investigation and the deposition of Rhoades 25 may result in a decision not to name him again in this action, or may lead to some other resolution of 26 any such claims against Rhoades (which she contends are subject to the uniform three year of statute 27 limitations applicable to maritime torts); and 28 2 STIPULATION & ORDER EXTENDING TIME TO ADD PARTY CASE NO. 3:13-cv-02862 - JST 1 WHEREAS if Plaintiff is required, out of an abundance of caution, to name Rhoades 2 at this time, she would not thereafter be able to dismiss that claim without prejudice (under 3 the two dismissal rule); 4 WHEREAS Rhoades not only does not want to be named herein as a defendant, but he 5 does not want to file claims against Plaintiff or the District, however if he is brought into the 6 case at this time he would have no choice but to attempt to assert such additional claims 7 herein; and 8 WHEREAS the parties and Rhoades agree that all limitation periods will be tolled as 9 of the date of this Stipulation and that in the event that Rhoades is brought into the case at a 10 later date, his counter and or cross-claims will be only subject to limitation periods that 11 expired before February 27, 2014; and 12 WHEREAS Rhoades is agreeable to, and indeed requests, that this deadline be 13 extended, and he agrees to maintain all current deadlines and dates set by the Court so long 14 as he is given notice of the intent to re-name him herein by April 28, 2014; and 15 WHEREAS Rhoades agrees that the Plaintiff’s complaint can be re-served on his 16 counsel by that date, and that he will thereafter file his response within twenty days 17 thereafter: 18 WHEREFORE the parties and Rhoades submit that good cause exists to extend this, 19 and only this deadline, and respectfully STIPULATE and request that the Court order that the 20 Plaintiff be given until April 28, 2014 to re-serve Rhoades (via his counsel) and file a proof 21 of service with the Court. 22 23 24 SO STIPULATED. DATED: February 27, 2014 BRODSKY MICKLOW BULL & WEISS LLP By: /s/ Edward M. Bull III Edward M. Bull III 25 26 27 Attorneys for Plaintiff MARY HOLZHAUER, Individually and as the Personal Representative of HARRY HOLZHAUER (DECEASED) 28 3 STIPULATION & ORDER EXTENDING TIME TO ADD PARTY CASE NO. 3:13-cv-02862 - JST 1 DATED: February 27, 2014 2 STERLING & CLACK By: /s/ David E. Russo David E. Russo 3 Attorneys for Defendant GOLDEN GATE BRIDGE, HIGHWAY & TRANSPORTATION DISTRICT 4 5 6 7 DATED: February 27, 2014 8 KEESAL, YOUNG & LOGAN By: /s/ John D. Giffin John D. Giffin 9 10 Attorneys for Defendant David P. Rhoades 11 12 13 ORDER 14 1. 17 file a proof of service with the Court; 2. This is the only deadline to be extended, and any other amendment or addition of any party shall be due on February 28, 2014 as previously ordered; and 3. Plaintiff’s complaint can be re-served on counsel for Rhoades by April 28, 2014, and Rhoades will thereafter file his response within twenty days thereafter. 21 22 IT IS SO ORDERED. 24 UNIT ED 23 S DISTRICT TE C TA RT U O S 20 D _________________________________ RDERE DATED: February 28, 2014 O O UNITED STATES DISTRICT JUDGE IT IS S 25 NO 26 RT 27 ER H 28 n J u d ge J o 4 STIPULATION & ORDER EXTENDING TIME TO ADD PARTY R NIA 19 S . Ti ga r FO 18 Plaintiff is given until April 28, 2014 to re-serve Rhoades (via his counsel) and to LI 16 Given the stipulation of the parties and Rhoades, and good cause appearing to support the extension sought, IT IS HEREBY ORDERED that: A 15 N F D IS T IC T O R C CASE NO. 3:13-cv-02862 - JST

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