Trollman vs. United States

Filing 29

STIPULATION AND AGREEMENT OF COMPROMISE AND SETTLEMENT ORDER. Signed by Magistrate Judge Laurel Beeler on 3/8/2016. (lsS, COURT STAFF) (Filed on 3/8/2016)

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BRIAN J. STRETCH (CABN 163973) 1 Acting United States Attorney ALEX G. TSE (CABN 152348) 2 Chief, Civil Division WENDY M. GARBERS (CABN 213208) 3 Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-6475 FAX: (415) 436-7234 4 5 6 7 Attorneys for Defendant UNITED STATES OF AMERICA 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN FRANCISCO DIVISION 12 LORENZ TROLLMAN, Docket No. 15-CV-1300 LB 13 Plaintiff, 14 STIPULATION AND AGREEMENT OF COMPROMISE AND SETTLEMENT AND [PROPOSED] ORDER 15 v. 16 UNITED STATES OF AMERICA. 17 Defendant. 18 19 20 21 22 23 24 25 26 27 It is hereby stipulated by and between the undersigned Plaintiff LORENZ TROLLMAN and the UNITED STATES OF AMERICA, by and through their respective attorneys, as follows: WHEREAS, Plaintiff filed the above-captioned action on March 19, 2015; WHEREAS, Plaintiff and Defendant wish to avoid any further litigation and controversy and to settle and compromise fully any and all claims and issues that have been raised, or could have been raised in this action, which have transpired prior to the execution of this Settlement Agreement ("Agreement"); NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, and other good and valuable consideration, receipt of which is hereby acknowledged (except for 28 STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER No. 15-cv-1300 1 receipt of the Settlement Amount, which will be paid as specified in Paragraph 11 below), the Parties 2 agree as follows: 1. Agreement to Compromise Claims. The parties do hereby agree to settle and 3 4 compromise each and every claim of any kind, whether known or unknown, arising directly or 5 indirectly from the acts or omissions that gave rise to the above-captioned action under the terms and 6 conditions set forth in this Agreement. 2. Definition of "United States of America." As used in this Agreement, the United States 7 8 of America shall include its current and former agents, servants, employees, and attorneys, as well as_ 9 the Department of the Interior, the National Park Service, and/or their current and former agents, 10 servants, employees, and attorneys. 3. Settlement Amount. The United States of America agrees to pay the sum of Three_ 11 12 Hundred Twenty Five Thousand dollars ($325,000.00) ("Settlement Amount"), which sum shall be 13 in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of 14 whatsoever kind and nature, arising from, and by reason of any and all known and unknown, 15 foreseen and unforeseen personal injuries, damage to property and the consequences thereof, 16 resulting, and to result, from the subject matter of this settlement, including any claims for wrongful 17 death, for which Plaintiff or his guardians, heirs, executors, administrators, or assigns, and each of 18 them, now have or may hereafter acquire against the United States of America. 4. Release. Plaintiff and his guardians, heirs, executors, administrators or assigns hereby 19 20 agrees to accept the Settlement Amount in full settlement and satisfaction of any and all claims, 21 demands, rights, and causes of action of whatsoever kind and nature, including claims for wrongful 22 death, arising from, and by reason of any and all known and unknown, foreseen and unforeseen 23 personal injuries, damage to property and the consequences thereof which they may have or 24 hereafter acquire against the United States of America on account of the same subject matter that 25 gave rise to the above-captioned action, including any future claim or lawsuit of any kind or type 26 whatsoever, whether known or unknown, and whether for compensatory or exemplary damages. 27 Plaintiff and his guardians, heirs, executors, administrators or assigns further agrees to reimburse, 28 indemnify and hold harmless the United States of America from and against any and all such causes STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER No.C 2 1 of action, claims, liens, rights, or subrogated or contribution interests incident to or resulting from 2 further litigation or the prosecution of claims by Plaintiff or his guardians, heirs, executors, 3 administrators or assigns against any third party or against the United States, including claims for 4 wrongful death. 5. Dismissal of Action. In consideration of the payment of the Settlement Amount and the 5 6 other terms of this Agreement, Plaintiff shall immediately upon execution of this Agreement also 7 execute a Stipulation of Dismissal, a copy of which is attached hereto as Exhibit A. The Stipulation 8 of Dismissal shall dismiss, with prejudice, all claims asserted in this action, or that could have been 9 asserted in this action. The fully executed Stipulation ofDismissal will be held by Defendant's 10 attorney and will be filed within five (5) business days of receipt by Plaintiff's attorney of the 11 Settlement Amount. 6. No Admission of Liability. This stipulation for compromise settlement is not intended to 12 13 be, and should not be construed as, an admission of liability or fault on the part of the United States, 14 and it is specifically denied that it is liable to the Plaintiff. This settlement is entered into by all 15 parties for the purpose of compromising disputed claims and avoiding the expenses and risks of 16 further litigation. 17 7. Parties Bear Their Own Costs. It is also agreed, by and among the parties, that the 18 respective parties will each bear their own costs, fees, and expenses and that any attorney's fees 19 owed by the Plaintiff will be paid out of the Settlement Amount and not in addition thereto. 8. Attorney's ·Fees. It is also understood by and among the parties that pursuant to Title 28, 20 21 United States Code, Section 2678, attorney's fees for services rendered in connection with this 22 action shall not exceed 25 per centum of the amount of the compromise settlement. 9. Authority. The persons signing this Agreement warrant and represent that they possess 23 24 full authority to bind the persons on whose behalfthey are signing to the terms of the settlement 10. Waiver of California Civil Code§ 1542. The provisions of California Civil Code 25 26 27 28 Section 1542 are set forth below: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER No.C 3 1 2 Plaintiff having been apprised of the statutory language of Civil Code Section 1542 by his attorney, 3 and fully understanding the same, nevertheless elects to waive the benefits of any and all rights 4 he/she may have pursuant to the provision of that statute and any similar provision of federal law. 5 Plaintiff understands that, if the facts concerning Plaintiff's injury and the liability of the government 6 for damages pertaining thereto are found hereinafter to be other than or different from the facts now 7 believed by them to be true, the Agreement shall be and remain effective notwithstanding such 8 material difference. 11. Payment by Check. Payment of the Settlement Amount will be made by check drawn 9 10 on the Treasury of the United States for Three Hundred Twenty Five Thousand dollars 11 ($325,000.00) and made payable to Lorenz Trollman, Plaintiff, and The Zinn Law Firm, Plaintiff's 12 attorneys. The check will be mailed to Plaintiff's attorneys at the following address: 55 Francisco 13 St., Suite 403, San Francisco, 94133. Plaintiff's attorney agrees to distribute the settlement proceeds 14 to the Plaintiff. Plaintiff and his attorney have been informed that payment of the Settlement 15 Amount may take sixty (60) days or more from the date that the Court "so orders" this Agreement to 16 process. 12. Tax Liability. If any withholding or income tax liability is imposed upon Plaintiff or 17 18 Plaintiff's counsel based on payment of the Settlement Amount, Plaintiff or Plaintiff's counsel shall 19 be solely responsible for paying any such determined liability from any government agency. 20 Nothing in this Agreement constitutes an agreement by the United States of America concerning the 21 characterization of the Settlement Amount for the purposes of the Internal Revenue Code, Title 26 of 22 the United States Code. 23 13. Construction. Each party hereby stipulates that it has been represented by and has 24 relied upon independent counsel in the negotiations for the preparation of this Agreement, that it has 25 had the contents of the Agreement fully explained to it by such counsel, and is fully aware of and 26 understands all ofthe terms ofthe Agreement and the legal consequences thereof. For purposes of 27 construction, this Agreement shall be deemed to have been drafted by all Parties to this Agreement 28 and shall not, therefore, be construed against any Party for that reason in any subsequent dispute. STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER No.C 4 1 14. Severability. If any provision of this Agreement shall be invalid, illegal, or 2 unenforceable, the validity, legality, and enforceability of the remaining provision shall not in any 3 way be affected or impaired thereby. 4 15. Integration. This instrument shall constitute the entire Agreement between the parties, 5 and it is expressly understood and agreed that the Agreement has been freely and voluntarily entered 6 into by the parties hereto with the advice of counsel, who have explained the legal effect of this 7 Agreement. The parties further acknowledge that no warranties or representations have been made 8 on any subject other than as set forth in this Agreement. This Agreement may not be altered, 9 modified or otherwise changed in any respect except by writing, duly executed by all of the parties 10 or their authorized representatives. 11 DATED: 12 ~2- Plaintlff-- 13 14 DATED: 03/ ca{tb 15 DATED: 16 17 18 19 20 21 22 23 24 PURSUANT TO STIPULATION, IT IS SO ORDERED. Dated: March 8, 2016 HON. LAUREL BEELER United States Magistrate Judge 25 26 27 28 STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER No.C 5

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