Kessler v. Bishop et al

Filing 19

STIPULATION AND ORDER CONTINUING STAY OF ACTION re 18 Stipulation filed by David A. Kessler, Robert Dynes, Mark Yudof. Signed by Judge Phyllis J. Hamilton on 3/15/10. (nah, COURT STAFF) (Filed on 3/15/2010)

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CROWELL & MORING LLP
ATTO RNEY S AT LAW

CROWELL & MORING LLP Michael A. Kahn (CSB No. 057432, [e-mail]) Karen J. Petrulakis (CSB No. 168732, [e-mail]) 275 Battery Street, 23rd Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants J. MICHAEL BISHOP, ROBERT DYNES and MARK YUDOF

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION DAVID A. KESSLER, Plaintiff, v. J. MICHAEL BISHOP, ROBERT C. DYNES, MARK G. YUDOF, "JANE/JOHN DOE", Defendants. Case No. 4:08-cv-05554 PJH STIPULATION AND [PROPOSED] ORDER CONTINUING STAY OF ACTION

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;
STIPULATION AND [PROPOSED] ORDER CONTINUING STAY OF ACTION; CASE NO. 4:08-CV-05554 PJH

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CROWELL & MORING LLP
ATTO RNEY S AT LAW

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 ("Hearing Subcommittee") held evidentiary hearings on May 20, May 21, June 1, July 13, July 15, September 22, and October 16 at which the Hearing Subcommittee heard testimony on behalf of both Kessler and the University (the "Administrative Hearing"). WHEREAS, the Hearing Subcommittee issued a recommendation regarding Kessler's grievance to the current Chancellor of UCSF, Chancellor Susan Desmond-Hellman, on January 11, 2010; WHEREAS, the administrative proceeding is not yet complete because the parties are awaiting a final decision from Chancellor Desmond-Hellman regarding Kessler's grievance. The final decision, 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 Chancellor Desmond-Hellman issues a final decision 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: -2STIPULATION AND [PROPOSED] ORDER CONTINUING STAY OF ACTION; CASE NO. 4:08-CV-05554 PJH

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CROWELL & MORING LLP
ATTO RNEY S AT LAW

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.")); 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 and another Order on September 4, 2009 staying the action until ten days after a final decision is issued regarding Kessler's grievance before the Privilege & Tenure Committee, and/or or six months from the date of the stipulation requesting the stay, whichever date shall occur first; NOW, THEREFORE, THE PARTIES HEREBY STIPULATE THAT: 1. To allow Chancellor Desmond-Hellman time to issue a final decision regarding

Kessler's grievance, the September 4, 2009 stay shall continue unabated, and 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 120 days after the Court enters this Order. 2. written notice. Dated: March 11, 2010 CROWELL & MORING LLP /s/ Karen J. Petrulakis Karen J. Petrulakis Attorneys for Defendants J. MICHAEL BISHOP, ROBERT C. DYNES and MARK G. YUDOF Dated: March 10, 2010 /s/ Thad M. Guyer (as approved 3/10/10) Thad M. Guyer Attorneys for Plaintiff DAVID A. KESSLER Each party reserves the right to request early termination of the stay on 30 days

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STIPULATION AND [PROPOSED] ORDER CONTINUING STAY OF ACTION; CASE NO. 4:08-CV-05554 PJH

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CROWELL & MORING LLP
ATTO RNEY S AT LAW

PURSUANT TO STIPULATION, IT IS SO ORDERED, 15 Dated: March _____, 2010

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