Milbauer v. United States

Filing 21

ORDER by Judge Yvonne Gonzalez Rogers granting 20 Stipulation of Compromise and Settlement. (ig, COURT STAFF) (Filed on 6/19/2013)

1
2
3
4

MELINDA HAAG (CABN 132612)
United States Attorney
ALEX G. TSE (CABN 152348)
Chief, Civil Division
NEILL\. T"s-E"N6
(CABN2'2o3'f8'')
Assistant United States Attorney
450 Golden Gate Avenue, Box 36055
San Francisco, CA 94102-3495
Telephone: ("f IS) 4Jb-[IS)
Fax: ('fiS) lfJb~t,/48
Email: V\eill. tsto'\ j@ UJd 0) • ':)"'v

5
6
7

8

Attorney for Defendant USA

9
UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

ClA~LANJ:>

SAN FRANCISCO DIVISION

12

Docket No. C

14
15

Plaintiff,
v.

16
17

UNITED STATES OF AMERICA

20

STIPULATION AND AGREEMENT OF
COMPROMISE AND SETTLEMENT AND
[PROPOSED] ORDER] tx141BrT ' 11 1'

Defendant.

18
19

11.-k,)JI ~ '161<.

It is hereby stipulated by and between the undersigned Plaintiff and the UNITED STATES
OF AMERICA, by and through their respective attorneys, as follows:

l '2../2 {o ,/11... ;

21

WHEREAS, Plaintiff filed the above-captioned action on

22

WHEREAS, Plaintiff and Defendant wish to avoid any further litigation and controversy and

23

to settle and compromise fully any and all claims and issues that have been raised, or could have

24

been raised in this action, which have transpired prior to the execution of this Settlement Agreement

25

("Agreement");

26

NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement,

27

and other good and valuable consideration, receipt of which is hereby acknowledged, the Parties

28

agree as follows:
STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER
No. C 11..- '- ) t l t-e-l... 'f 6.(2...

1

1. Agreement to Compromise Claims. The parties do hereby agree to settle and

2

compromise each and every claim of any kind, whether known or unknown, arising directly or

3

indirectly from the acts or omissions that gave rise to the above-captioned action under the terms and

4

conditions set forth in this Agreement.

5

2. Definition of "United States of America." As used in this Agreement, the United States

6

of America shall include its current and former agents, servants, employees, and attorneys, as well as

7
8

u.s.

ft.

De('~· of v~~i<fMJ Af'TT"iU, and/or its current and former agents, servants, employees, and attorneys.
3. Settlement Amount. The United States of America agrees to pay the sum of

dollars ($

b) Of>().~

)

("Settlement Amount"), which sum shall be in full

10

settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever

11

kind and nature, arising from, and by reason of any and all known and unknown, foreseen and

12

unforeseen personal injuries, damage to property and the consequences thereof, resulting, and to

13

result, from the subject matter of this settlement, including any claims for wrongful death, for which

14

Plaintiff or his [her] guardians, heirs, executors, administrators, or assigns, and each of them, now

15

have or may hereafter acquire against the United States of America.

16

4. Release. Plaintiff and his [her] guardians, heirs, executors, administrators or assigns

17

hereby agrees to accept the Settlement Amount in full settlement and satisfaction of any and all

18

claims, demands, rights, and causes of action of whatsoever kind and nature, including claims for

19

wrongful death, arising from, and by reason of any and all known and unknown, foreseen and

20

unforeseen personal injuries, damage to property and the consequences thereof which they may have

21

or hereafter acquire against the United States of America on account of the same subject matter that

22

gave rise to the above-captioned action, including any future claim or lawsuit of any kind or type

23

whatsoever, whether known or unknown, and whether for compensatory or exemplary damages.

24

Plaintiff and his [her] guardians, heirs, executors, administrators or assigns further agrees to

25

reimburse, indemnify and hold harmless the United States of America from and against any and all

26

such causes of action, claims, liens, rights, or subrogated or contribution interests incident to or

27

resulting from further litigation or the prosecution of claims by Plaintiff or his [her] guardians, heirs,

28
STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER
No. C \1.. -b)\l #t. '{ 6.((
2

1 executors, administrators or assigns against any third party or against the United States, including
2
3

claims for wrongful death.
5. Dismissal of Action. In consideration of the payment of the Settlement Amount and the

4

other terms of this Agreement, Plaintiff shall immediately upon execution of this Agreement also

5

execute a Stipulation of Dismissal, a copy of which is attached hereto as Exhibit A. The Stipulation

6

of Dismissal shall dismiss, with prejudice, all claims asserted in this action, or that could have been

7

asserted in this action. The fully executed Stipulation of Dismissal will be held by Defendant's

8

attorney and will be filed within five (5) business days of receipt by Plaintiffs attorney of the

9

Settlement Amount.

10

6. No Admission of Liability. This stipulation for compromise settlement is not intended to

11

be, and should not be construed as, an admission of liability or fault on the part of the United States,

12

and it is specifically denied that it is liable to the Plaintiff. This settlement is entered into by all

13

parties for the purpose of compromising disputed claims and avoiding the expenses and risks of

14

further litigation.

15

7. Parties Bear Their Own Costs. It is also agreed, by and among the parties, that the

16

respective parties will each bear their own costs, fees, and expenses and that any attorney's fees

17

owed by the Plaintiff will be paid out of the Settlement Amount and not in addition thereto.

18

8. Attorney's Fees. It is also understood by and among the parties that pursuant to Title 28;

19

United States Code, Section 2678, attorney's fees for services rendered in connection with this

20

action shall not exceed 25 per centum of the amount of the compromise settlement.

21
22
23
24
25
26

9. Authority. The persons signing this Agreement warrant and represent that they possess

full authority to bind the persons on whose behalf they are signing to the terms of the settlement.
10. Waiver of California Civil Code§ 1542. The provisions of California Civil Code
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."

27
28
STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER
No.c 11.~6sn ~

'fGtt

3

1 Plaintiff having been apprized of the statutory language of Civil Code Section 1542 by his [her]
2

attorney, and fully understanding the same, nevertheless elects to waive the benefits of any and all

3

rights he/she may have pursuant to the provision of that statute and any similar provision of federal

4

law. Plaintiff understands that, if the facts concerning Plaintiffs injury and the liability of the

5

government for damages pertaining thereto are found hereinafter to be other than or different from

6

the facts now believed by them to be true, the Agreement shall be and remain effective

7

notwithstanding such material difference.

8
9

11. Payment by Check. Payment of the Settlement Amount will be made by check drawn
on the Treasury of the United States for

fiv(. ±bwJer.,)

Th t>mt?~ QlA !t--h

dollars ($Gj~.~ ) and made

10

payable to

11

the following address:

12

the settlement proceeds to h'e Pfamtlff. Ylamtlff and h1s attorney have been mformed that payment

13

of the Settlement Amount may take sixty (60) days or more from the date that the Court "so orders"

14

this Agreement to process.

15

b

SJon ,..(

p ..p IJS /111-ftJiw CA

The check will be mailed to Plaintiffs attorneys at

. )OO . Plaintiffs attorney agrees to distribute
q '/~?;

.

12. Tax Liability. If any withholding or income tax liability is imposed upon Plaintiff or

16

Plaintiffs counsel based on payment of the Settlement Amount, Plaintiff or Plaintiffs counsel shall

17

be solely responsible for paying any such determined liability from any government agency.

18

Nothing in this Agreement constitutes an agreement by the United States of America concerning the

19

characterization of the Settlement Amount for the purposes of the Internal Revenue Code, Title 26 of

20

the United States Code.

21

13. Construction. Each party hereby stipulates that it has been represented by and has

22

relied upon independent counsel in the negotiations for the preparation of this Agreement, that it has

23

had the contents of the Agreement fully explained to it by such counsel, and is fully aware of and

24

understands all of the terms of the Agreement and the legal consequences thereof. For purposes of

25

construction, this Agreement shall be deemed to have been drafted by all Parties to this Agreement

26

and shall not, therefore, be construed against any Party for that reason in any subsequent dispute.

27
28
STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER
No. C \1-!oSfl ~ ~(J.{L
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.
15. Integration. This instrument shall constitute the entire Agreement between the parties,

4
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
12

DATED-d.

. --1

(/fl.l/#1"~ /...)

Plaintiff

13
14
15

DATED:-:Ju17t

16

DATED:

Jv.-u

I~ :J.v/3

13 I ~ol3

17

Assistant United States Attorney f\JI:llL I. TIENts,
Attorney for Defendant

18

19

Calendar, in the Federal Courthouse, 1301 Clay Street, Oakland, California in Courtroom 5.
Five (5) business days prior to the date of the compliance hearing, the parties shall file either (a) a
Stipulation of Dismissal; or (b) a one-page Joint Statement setting forth an explanation regarding
the failure to comply. If compliance is complete, the parties need not appear and the compliance hearing
will be taken off calendar.

20
21
22

PURSUANT TO STIPULATION, IT IS SO ORDERED.

23
24
25

A compliance hearing shall be held on Friday, September 13, 2013 on the Court’s 9:01a.m.

Dated:

June 19, 2013
HHrcoi}Nf.---iiiliiiiiiii~-;;y"V<voJitJiA:I.Jitt-(6ol.ft4Le+United States IJiWict•Judge
{2._u6€R...J

26

Mslj•Jl

a~

Drr;;Jn'cJ-

27
28

STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE [PROPOSED] ORDER
No. C 11-(oS\l
'f().A..
5

at: