Kessler v. Bishop et al

Filing 15

STIPULATION AND ORDER CONTINUING STAY OF ACTION re 14 Stipulation filed by Robert Dynes, Mark Yudof, J. Michael Bishop. Signed by Judge Phyllis J. Hamilton on 9/4/09. (nah, COURT STAFF) (Filed on 9/4/2009)

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FOLGER LEVIN & KAHN LL P
A T T O R N E Y S A T LAW

FOLGER LEVIN & KAHN LLP Michael A. Kahn (CSB No. 057432, [e-mail]) Karen J. Petrulakis (CSB No. 168732, [e-mail]) Genevieve E. Evarts (CSB No. 226874, [e-mail]) Embarcadero Center West 275 Battery Street, 23rd Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants J. MICHAEL BISHOP, ROBERT C. DYNES and MARK G. YUDOF UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION DAVID A. KESSLER, Plaintiff, v. J. MICHAEL BISHOP, ROBERT DYNES, MARK YUDOF, "JANE/JOHN DOE", Defendants. Plaintiff David A. Kessler ("Plaintiff" or "Kessler") and Defendants former Chancellor, Dr. J. Michael Bishop ("Bishop"), President Emeritus Robert C. Dynes ("Dynes") and President Mark G. Yudof ("Yudof") (collectively "Defendants") hereby file this stipulation: WHEREAS, Defendant Bishop is the former Chancellor of the University of California, San Francisco ("UCSF"), which is part of the larger, multi-campus University of California (the "University"), which is governed by the Board of Regents; WHEREAS, Defendant Yudof is the current President of the University, and Defendant Dynes is the former President of the University; WHEREAS, Plaintiff Kessler is a tenured faculty member of UCSF and the former Dean of the Medical School and Vice Chancellor of Medical Affairs at UCSF; Case No. C 08 5554 PJH STIPULATION AND [PROPOSED] ORDER CONTINUING STAY OF ACTION

STIPULATION AND [PROPOSED] ORDER CONTINUING STAY OF ACTION; CASE NO. C 08 5554

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WHEREAS, on or about December 12, 2008, Kessler filed the above captioned action before this Court, alleging that Defendants Bishop and Dynes terminated Kessler from his positions as Dean and Vice Chancellor in retaliation for Kessler's alleged protected whistleblower activity and asserting a cause of action against Defendants pursuant to 42 U.S.C. § 1983; WHEREAS, the controversy pending in this Court involves overlapping issues and arises out of the same facts and circumstances as the controversy currently pending in a previously-filed internal University administrative proceeding, specifically a grievance that Kessler filed on or about January 8, 2008 before the UCSF Division of the University of California Academic Senate Committee on Privilege and Tenure ("Privilege & Tenure Committee"), in which Kessler similarly alleges that Defendants Bishop and Dynes terminated Kessler from his positions as Dean and Vice Chancellor in retaliation for Kessler's protected, whistleblower activity; WHEREAS, the Hearing Subcommittee of the Privilege & Tenure Committee held evidentiary hearings on May 20-21, June 1, July 13 and July 15 at which the committee heard testimony on behalf of both Kessler and the University, and additional hearing dates are presently set on September 22 and October 16 (the "Administrative Hearing"). After the conclusion of the Administrative Hearing, a committee recommendation and subsequent final decision will be issued regarding Kessler's grievance. The final outcome of that Administrative Hearing, which could result in assertions of rights to judicial review of that outcome, will likely clarify and focus some or all of the legal and factual issues that are before this Court, and may result in arguments over preclusive effect and/or mootness as to all or part of each party's claims and defenses in this action before this Court; WHEREAS, staying this action until a final decision is issued regarding Kessler's grievance will result in an economy of judicial resources and avoid unnecessary duplication of effort by the Court and the parties; WHEREAS, this Court has authority and discretion to stay this action pursuant to: a. The Court's inherent authority to control and manage litigation (see, e.g., Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 607 (1992) ("The district court is given broad discretion in supervising the pretrial phase of litigation.")); -2STIPULATION AND [PROPOSED] ORDER CONTINUING STAY OF ACTION; CASE NO. C 08 5554

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A T T O R N E Y S A T LAW

b. The abstention doctrine set forth in Younger v. Harris, 401 U.S. 37 (1971) and Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004); and c. Traditional principles of equity and comity; WHEREAS this Court previously entered an Order, on March 16, 2009, staying the action until 10 days after the conclusion of the Administrative Hearing and/or six months from the date of the stipulation requesting the stay, whichever date shall occur first, and such stay will expire prior to the next hearing date set by the Privilege & Tenure Committee on September 22; NOW, THEREFORE, THE PARTIES HEREBY STIPULATE THAT: 1. All pending dates in this action, including all matters set forth in the Court's

December 12, 2008 Scheduling Order and the date by which Defendants must respond to the Complaint, be VACATED and the litigation be STAYED until 10 days after a final decision is issued regarding Kessler's grievance before the Privilege & Tenure Committee, and/or six months from the date of the filing of this stipulation, whichever date shall occur first; 2. written notice. Dated: August 14, 2009 FOLGER LEVIN & KAHN LLP /s/ Karen J. Petrulakis Karen J. Petrulakis Attorneys for Defendants J. MICHAEL BISHOP, ROBERT C. DYNES and MARK G. YUDOF /s/ Thad M. Guyer (as approved 8/13/09) Anthony Bothwell Thad M. Guyer Attorneys for Plaintiff DAVID A. KESSLER PURSUANT TO STIPULATION, IT IS SO ORDERED, September 4 Dated: August _____, 2009
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Each party reserves the right to request early termination of the stay on 30 days

Dated: August 14, 2009

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