Gilhuly v. KMART Corporation

Filing 54

STIPULATION AND ORDER GRANTING LEAVE TO FILE FIRST AMENDED COMPLAINT re 53 STIPULATION WITH PROPOSED ORDER re 51 MOTION for Leave to File FIRST AMENDED COMPLAINT filed by Michael Gilhuly. Signed by Judge Phyllis J. Hamilton on 1/23/12. (nah, COURT STAFF) (Filed on 1/23/2012)

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ATTORNEY’S AT LAW
THE WACHOVIA TOWER
1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612
TEL: [phone]

SCOTT COLE & ASSOCIATES, APC

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Matthew R. Bainer, Esq. (S.B. #220972)
Molly A. DeSario, Esq. (S.B. #230763)
SCOTT COLE & ASSOCIATES, APC
1970 Broadway, Ninth Floor
Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Web: www.scalaw.com
Attorneys for Representative Plaintiff
and the Plaintiff Class

ROGERS JOSEPH O’DONNELL
GAYLE M. ATHANACIO (State Bar No. 130068)
[e-mail]
SHARON O. ROSSI (State Bar No. 232725)
[e-mail]
311 California Street
San Francisco, California 94104
Telephone: [phone]
Facsimile: 415.956.6457

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Attorneys for Defendant
KMART CORPORATION

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION

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MICHAEL GILHULY, individually,
and on behalf of all others similarly
situated,
Plaintiff,

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vs.

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KMART CORPORATION., and
DOES 1 through 100, inclusive,

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Defendants.

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Case No. 4:10-cv-0360-PJH (DMR)
CLASS ACTION
STIPULATION AND [PROPOSED] ORDER
GRANTING LEAVE TO FILE FIRST
AMENDED COMPLAINT

Plaintiff Michael Gilhuly (“Plaintiff’) and Defendant Kmart Corporation (“Defendant”), by
and through their respective counsel of record, hereby agree and stipulate as follows:

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-1Stipulation and [Proposed] Order Granting Leave to File First Amended Complaint

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WHEREAS, Plaintiff has filed a Motion For Leave to File First Amended Complaint

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“(Motion For Leave”) which would add a claim under the Private Attorney General Act, but

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otherwise is based upon the exact same parties, claims, and time period as contained in Plaintiff’s

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operative complaint;

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WHEREAS, Plaintiff has requested that Defendant stipulate to the filing of the proposed
First Amended Complaint attached to Plaintiff’s Motion For Leave as Exhibit A;

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WHEREAS, Defendant has agreed to stipulate to the filing of the First Amended Complaint

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with the express understanding that by so stipulating, Defendant does not waive any argument, right

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or defense with regard to the allegations and claims asserted in the First Amended Complaint;
WHEREFORE, IT IS STIPULATED AND AGREED:

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1.

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ATTORNEY’S AT LAW
THE WACHOVIA TOWER
1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612
TEL: [phone]

SCOTT COLE & ASSOCIATES, APC

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Plaintiff may file and serve his First Amended Complaint, a copy of which is set
forth as Exhibit A, hereto.

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In accordance with Federal Rule of Civil Procedure 15(a)(3), Defendant shall

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have 14 days from the service of Plaintiff’s First Amended Complaint in which to

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file its response to Plaintiff’s First Amended Complaint. This Stipulation will not

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limit in any manner whatsoever Defendant’s ability to raise defenses or file

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motions regarding the content of the First Amended Complaint.
IT IS SO STIPULATED.

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Dated: January 19, 2012

SCOTT COLE & ASSOCIATES, APC

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By:

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/s/ Molly A. DeSario
Molly A. DeSario, Esq.
Attorneys for the Plaintiff

Dated: January 19, 2012
ROGERS JOSEPH O’DONNELL

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By:

/s/ Gayle M. Athanacio
Gayle M. Athanacio, Esq.
Attorneys for Defendant
Kmart Corporation
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Stipulation and [Proposed] Order Granting Leave to File First Amended Complaint

[PROPOSED] ORDER

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UPON GOOD CAUSE APPEARING, AND PURSUANT TO THE STIPULATION
BETWEEN PARTIES, THE COURT HEREBY ORDERS AS FOLLOWS:
1. Plaintiff may file and serve his First Amended Complaint, a copy of which is set forth
as Exhibit A, hereto.

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2. Defendant shall have 14 days from service of the First Amended Complaint in which

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to file its response to Plaintiff’s First Amended Complaint. This Order does not limit

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in any manner whatsoever Defendant’s ability to raise defenses or file motions

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regarding the content of the First Amended Complaint.

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IT IS SO ORDERED.
ISTRIC
ES D

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______________________________
TA
Honorable Phyllis J. Hamilton
ERED
O OR
United States DistrictDJudge
IT IS S

ER

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hyllis J.

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Judge P

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1/23/12
Dated: ______________________

RT

ATTORNEY’S AT LAW
THE WACHOVIA TOWER
1970 BROADWAY, NINTH FLOOR
OAKLAND, CA 94612
TEL: [phone]

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NO

SCOTT COLE & ASSOCIATES, APC

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F
D IS T IC T O
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-3Stipulation and [Proposed] Order Granting Leave to File First Amended Complaint