Estate of Donald Nelson et al v. County of Alameda et al

Filing 45

STIPULATION AND ORDER DISMISSING CASE. Signed by Judge Charles R. Breyer on 11/19/2021. (ls, COURT STAFF) (Filed on 11/19/2021)

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Jeremy I. Lessem, Esq (SBN 213406)
Jamal L. Tooson, Esq (SBN 261373)
Lessem, Newstat & Tooson, LLP
3450 Cahuenga Blvd W. Ste. 102
Los Angeles, CA 90068
Phone [phone] | Fax [phone]
[e-mail]
[e-mail]
Karen Joynt (SBN 206332)
Joynt Law
225 S. Lake Ave. #300
Pasadena, CA 91101
Phone [phone]
[e-mail]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ESTATE OF DONALD NELSON, by and
through ELLEN AUGUSTINE, FLORENE
NELSON-WARREN, JIMMIE NELSON, LEE
NELSON, LUGENE NELSON, NORMA
NELSON, OTHA NELSON, PEARL
NELSON, EFFIE POWELL-ROSS, AND
DOROTHY RICHARD, and DONNA TRIGG,
as successors in interest,

Case No.: 3:21-cv-03225-CRB

JOINT STIPULATION OF VOLUNTARY
DISMISSAL OF THE PLAINTIFFS’
FIRST AMENDED COMPLAINT
ORDER

Fed. Rule Civ. Proc. 41(a)(1)(A)(ii)

Plaintiffs,
vs.

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COUNTY OF ALAMEDA, DEPUTY TRAVIS
EGAN, LIEUTENANT B.D. BARKER,
CALIFORNIA FORENSIC MEDICAL
GROUP, , DOES 1 THROUGH 20,
INCLUSIVE,
Defendants

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STIPULATION TO DISMISS FAC

TO THE HONORABLE CHARLES R. BREYER, UNITED STATES

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DISTRICT JUDGE:

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Plaintiffs Estate of Donald Nelson, by and through Ellen Augustine, Florene

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Nelson-Warren, Jimmie Nelson, Lee Nelson, Lugene Nelson, Norma Nelson, Otha

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Nelson, Pearl Nelson, Effie Powell-Ross, Dorothy Richard, and Donna Trigg,

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successors in interest to Donald Nelson (collectively Plaintiffs), and Defendant

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County of Alameda, Defendant Deputy Travis Egan, Defendant Lt. B.D. Barker,

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and Defendant California Forensic Medical Group (collectively Defendants)

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hereby submit this Stipulation of Voluntary Dismissal of the Plaintiffs’ Federal

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Law Claims pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii) as follows:

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1.

On April 30, 2021, Plaintiffs filed a Complaint in the above captioned

action in the Northern District of California. The action was timely filed. (Docket

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#1)
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2.

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(Docket #29)
3.

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On July 30, 2021, Plaintiffs filed a timely First Amended Complaint.
On August 13, 2021, Defendant CFMG answered Plaintiffs’ First

Amended Complaint (“FAC”), admitting that jurisdiction and venue were properly
pled.
4.

On August 13, 2021, Defendants County of Alameda and Deputy

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Egan filed a Motion to Dismiss Plaintiffs’ First Amended Complaint pursuant to

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FRCP 12(b) (Docket #30). Although Lt. B.D. Barker was named as a Defendant in

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the FAC, he was not listed as a party on the Court’s docket. Nevertheless, the

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County advanced arguments on his behalf in the Motion (collectively, “County

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Defendants”).

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STIPULATION TO DISMISS FAC

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5.

On October 14, 2021, this court granted the County Defendants’

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Motion to Dismiss (“Order”) and permitted Plaintiffs until November 19, 2021 to

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file an amended complaint consistent with that Order.

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6.

The FAC alleges federal claims for relief pursuant to 42 U.S.C. §

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1983 for constitutional violations for denial of medical care, denial of medical care

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and safe conditions, Monell liability, and supervisor liability.

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7.

The FAC also alleges claims under state law for relief for Negligence

and a violation of Government Code §845.6.
8.

No depositions have been taken. No written discovery has been

conducted.
9.

The parties agree and stipulate that any and all federal claims,

including the claims for relief asserted in the FAC pursuant to 42 U.S.C. § 1983 for

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constitutional violations for denial of medical care, denial of medical care and safe
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conditions, Monell liability, and supervisor liability will be dismissed with
prejudice and that such dismissal is not on the merits and will have no effect on the
state claims for relief.
10.

The parties agree and stipulate that any and all state claims for relief,

including without limitation the claims for Negligence, and violations of

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Government Code §845.6 will be dismissed without prejudice, except as discussed

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in paragraph 11 herein.

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11.

Notwithstanding the provisions of paragraphs 9 and 10 above, to the

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extent that Order dismissed certain claims with prejudice, they remain dismissed

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with prejudice.

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12.

The parties agree and stipulate that within thirty (30) days following

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the dismissal of the above-captioned action, Plaintiffs will file a Complaint against

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any and all Defendants in the Alameda County Superior Court pursuant to 28

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STIPULATION TO DISMISS FAC

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U.S.C. §1367(d). Such complaint will only include claims for Negligence and

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violations of Government Code §845.6.

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13.

Plaintiffs and County Defendants have a disagreement regarding

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whether Plaintiffs have previously asserted a wrongful death claim under state law.

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In sum, and without waiving additional arguments in the future, Plaintiffs contend

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that they have sufficiently alleged wrongful death and that a claim of insufficiency,

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if one existed, should have been raised in its 12(b) motion or is otherwise waived.

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County Defendants disagree and contend, in sum and without waiving additional

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arguments, that no such claim has ever been asserted by Plaintiffs and that the
statute of limitations for asserting such claim has expired. The County Defendants
further contend that Plaintiffs failed to include any such claim in their Government
Claim. The parties agree that such disagreement is not resolved by this stipulation

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and may be raised and disputed in future motions.
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14.

The parties agree and stipulate that such new complaint may include

additional facts, corrections, edits, identification of parties including Does, or other
amendments so long as such amendments do not add additional causes of action
beyond those identified in ¶12.
15.

The parties agree and stipulate that, with the exception of Plaintiffs

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state law claim for wrongful death discussed in ¶ 13, all statutes of limitations for

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Plaintiffs’ state law claims for relief as asserted in the FAC have been complied

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with and will not form a basis for dismissal in state court, assuming Plaintiffs file a

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Complaint in state court no later than 30 days following the dismissal of the above-

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captioned action. Except as to Plaintiffs’ state law claim for wrongful death,

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Defendants will not assert defenses claiming violations of statutes of limitations,

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and agree that, so long as the state action is filed within thirty (30) days of the

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STIPULATION TO DISMISS FAC

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federal Court’s dismissal of the state claims, said state claims as asserted in the

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Fifth and Sixth claims in the FAC will be deemed to have been timely filed.

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16.

The parties agree and stipulate that each party shall be responsible for

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its own costs and attorneys’ fees associated with the dismissal of the federal

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claims.
IT IS SO STIPULATED.

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LESSEM, NEWSTAT, & TOOSON, LLP.

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DATED: November 17, 2021
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By:
/s/ Jeremy Lessem

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____________________________________
Jeremy I. Lessem
Attorney for Plaintiffs

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JOYNT LAW

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DATED: November 17, 2021
By:

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/s/ Karen Joynt
____________________________________
Karen Joynt
Attorney for Plaintiffs

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Dated: November 17, 2021

ORBACH HUFF + HENDERSON LLP

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By:
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/s/ Kevin E. Gilbert
Kevin E. Gilbert
Attorney for Defendants
COUNTY OF ALAMEDA and
DEPUTY TRAVIS EGAN

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STIPULATION TO DISMISS FAC

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Dated: November 17, 2021

LAW OFFICES OF JEROME M.
VARANINI

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By:

/s/ Jerome Varanini
Jerome M. Varanini
Attorney for Defendant
CALIFORNIA FORENSIC MEDICAL
GROUP, INC.

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STIPULATION TO DISMISS FAC

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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ESTATE OF DONALD NELSON, by and
through ELLEN AUGUSTINE, FLORENE
NELSON-WARREN, JIMMIE NELSON, LEE
NELSON, LUGENE NELSON, NORMA
NELSON, OTHA NELSON, PEARL
NELSON, EFFIE POWELL-ROSS, AND
DOROTHY RICHARD, and DONNA TRIGG,
as successors in interest,

Case No.: 3:21-cv-03225-CRB

[PROPOSED] ORDER DISMISSING
PLAINTIFFS’ FEDERAL LAW CLAIMS
WITH PREJUDICE AND STATE CLAIMS
WITHOUT PREJUDICE

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Plaintiffs,

Fed. Rule Civ. Proc. 41(a)(1)(A)(ii)

vs.
COUNTY OF ALAMEDA, DEPUTY TRAVIS
EGAN, LIEUTENANT B.D. BARKER,
CALIFORNIA FORENSIC MEDICAL
GROUP, DOES 1 THROUGH 20,
INCLUSIVE,

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Defendants

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Having reviewed the Joint Stipulation to Voluntarily Dismiss Federal Law
Claims and finding good cause therefor, the following is hereby ORDERED:
(1)

All federal claims in Plaintiffs’ First Amended Complaint shall be

dismissed with prejudice.
(2)

All state claims in Plaintiffs’ First Amended Complaint shall be

dismissed without prejudice.
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[PROPOSED] ORDER

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(3)

Plaintiffs have thirty (30) days to refile state law claims in the

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Alameda County Superior Court upon this Court’s dismissal.

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IT IS SO ORDERED.

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DATE: November 19, 2021

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OFCALIFORNIA

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By _________________________________
Honorable Charles R. Breyer
United States District Court Judge

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[PROPOSED] ORDER