Whitsitt v. Industrial Employer Distributor Association et al

Filing 40

ORDER by Judge Saundra Brown ArmstrongGranting 39 Stipulation Voluntarily Dismissing Plaintiffs Second Amended Complaint and Granting Plaintiff Leave to File a Third Amended Complaint, Pursuant to Fed. R. Civ. P. 41(a)(2) and Fed. R. Civ. P. 15(a)(2). (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 11/26/2013)

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Clarissa A. Kang, No. 210660
Michelle S. Lewis, No. 255787
TRUCKER  HUSS
A Professional Corporation
One Embarcadero Center, 12th Floor
San Francisco, CA 94111
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
[e-mail]

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Attorneys for Defendants
Industrial Employers Distributors Association
and Distributors Association Warehousemen's
Pension Trust
UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

Trucker  Huss 
A Professional Corporation 
th
One Embarcadero Center, 12  Floor 
San Francisco, California  94111 

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WILLIAM J. WHITSITT,

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Case No. 4:13-cv-00396-SBA

Plaintiff,
vs.
INDUSTRIAL EMPLOYER DISTRIBUTOR
ASSOCIATION, et al.,

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Defendants.
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STIPULATION AND [PROPOSED] ORDER
VOLUNTARILY DISMISSING
PLAINTIFF’S SECOND AMENDED
COMPLAINT AND GRANTING
PLAINTIFF LEAVE TO FILE A THIRD
AMENDED COMPLAINT, PURSUANT TO
FED. R. CIV. P. 41(a)(2) AND FED. R. CIV.
P. 15(a)(2)

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STIPULATION
This Stipulation is made by and between William J. Whitsitt (“Plaintiff”) and Defendants

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Industrial

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Warehousemen’s Pension Trust (the “Trust”) and International Longshoremen and Warehouse

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Union Local 6 (“Local 6”) (together the “Defendants”), with respect to the following facts:

Employers

Distributors

Association

(“IEDA”),

Distributors

Association

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WHEREAS, on September 3, 2013, defendants IEDA and the Trust filed a Notice of

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Motion and Motion to Dismiss Plaintiff’s original Complaint for Failure to Comply with Fed. R.

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Civ. P. 8(a) and, in the Alternative, Motion for More Definite Statement Under Federal Rule of

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Civil Procedure (“Fed. R. Civ. P.”) 12(e) (the “Motion to Dismiss”) (Dkt. No. 23).

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STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINTAND
GRANTING PLAINTIFF LEAVE TO FILE A SECOND AMENDED COMPLAINT, Case No. 4:13-cv-00396-SBA
#1386952

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WHEREAS, defendant Local 6 filed a Statement of Non-Opposition and Joinder in the
Motion to Dismiss on September 7, 2013 (Dkt. No. 28).

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WHEREAS, following a meet and confer between Plaintiff and counsel for IEDA and the

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Trust on September 9, 2013, Plaintiff agreed to file an amended Complaint in order to cure the

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defects of his original Complaint as set forth in the Motion to Dismiss, and in order to comply with

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Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.
WHEREAS, on September 11, 2013, Plaintiff and Defendants filed a Stipulation and

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Proposed Order voluntarily dismissing Plaintiff’s Complaint, without prejudice (Dkt. No. 31), and

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the Court entered an Order to that effect on the same date. (Dkt. No. 33). The Stipulation and

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Order stated that Plaintiff would file an Amended Complaint on or before September 30, 2013, that

Trucker  Huss 
A Professional Corporation 
th
One Embarcadero Center, 12  Floor 
San Francisco, California  94111 

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cures the defects of the original Complaint as set forth in IEDA and the Trust’s Motion to Dismiss

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(Dkt. No. 23), and that otherwise satisfies the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ.

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P. 10.

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WHEREAS, Plaintiff filed an Amended Complaint on September 30, 2013, which was

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entered onto the Court’s electronic docket on October 4, 2013 (Dkt. No. 34), but not served by

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Plaintiff on Defendants.

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WHEREAS, after receiving electronic notification of the filing of an Amended Complaint

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on October 4, 2013, Defendants reviewed Plaintiff’s Amended Complaint and concluded that it did

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not cure the defects of the original Complaint as set forth in IEDA’s and the Trust’s Motion to

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Dismiss, and failed to satisfy the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.

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WHEREAS, on October 7, 2013, in compliance with Judge Armstrong’s Standing Order,

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and before filing a second Motion to Dismiss and Motion for More Definite Statement, Defendants

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requested a meet and confer with Plaintiff to discuss the shortcomings of his Amended Complaint.

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WHEREAS, Plaintiff and counsel for Defendants had a telephonic meet and confer on

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October 11, 2013 in which the Defendants informed Plaintiff that his Amended Complaint still

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failed to satisfy the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10 and that Defendants

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intended to move to dismiss Plaintiff’s Amended Complaint, with prejudice. Plaintiff agreed to

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voluntarily dismiss his Amended Complaint without prejudice and re-file a Second Amended
STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT, Case No. 4:13-cv-00396-SBA
#1386952

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Complaint within (30) thirty days, in order to cure the defects of his Amended Complaint as set

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forth in the Motion to Dismiss, and in order to comply with Fed. R. Civ. P. 8 and Fed. R. Civ.

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P. 10.

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WHEREAS, Plaintiff filed a Second Amended Complaint on November 12, 2013 (Dkt.
No. 38).

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WHEREAS, after receiving electronic notification of the filing of a Second Amended

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Complaint on November 12, 2013, Defendants reviewed Plaintiff’s Second Amended Complaint

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and concluded that it did not cure the defects of the Amended Complaint as discussed in the meet

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and confer with Plaintiff on October 11, 2013 and as set forth in IEDA’s and the Trust’s Motion to

Trucker  Huss 
A Professional Corporation 
th
One Embarcadero Center, 12  Floor 
San Francisco, California  94111 

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Dismiss, and failed to satisfy the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.

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WHEREAS, on November 20, 2013, in compliance with Judge Armstrong’s Standing

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Order, and before filing a second Motion to Dismiss and Motion for More Definite Statement,

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Defendants requested a meet and confer with Plaintiff to discuss the shortcomings of his Second

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Amended Complaint.

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WHEREAS, Plaintiff and counsel for Defendants had a telephonic meet and confer on

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November 21, 2013 in which the Defendants informed Plaintiff that his Second Amended

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Complaint still failed to satisfy the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10 and that

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Defendants intended to move to dismiss Plaintiff’s Second Amended Complaint, with prejudice.

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Plaintiff agreed to voluntarily dismiss his Second Amended Complaint without prejudice and re-

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file a Third Amended Complaint by December 20, 2014, in order to cure the defects of his Second

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Amended Complaint as discussed in the meet and confer with Plaintiff on November 21, 2013 and

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as set forth in the Motion to Dismiss, and in order to comply with Fed. R. Civ. P. 8 and Fed. R.

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Civ. P. 10. Counsel for Defendants informed Plaintiff if the Third Amended Complaint does not

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correct the defects that have persisted in previously filed complaints, Defendants intended to seek

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leave to move to dismiss Plaintiff’s Third Amended Complaint, with prejudice, without being

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required to meet and confer and allow further amendment of the complaint.

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NOW, THEREFORE, IT IS HEREBY STIPULATED BY AND BETWEEN PLAINTIFF
AND DEFENDANTS AS FOLLOWS:
STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT, Case No. 4:13-cv-00396-SBA
#1386952

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Plaintiff hereby agrees to the voluntary dismissal of his Second Amended Complaint,

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without prejudice, pursuant to Fed. R. Civ. P. 41(a)(2). Plaintiff will file a Third Amended

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Complaint, pursuant to Fed. R. Civ. P. 15(a)(2), on or before December 20, 2013, that cures all of

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the defects discussed in the November 21, 2013 meet and confer and as set forth in the Motion to

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Dismiss (Dkt. No. 23) and otherwise complies with the requirements of Fed. R. Civ. P. 8 and Fed.

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R. Civ. P. 10.

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IT IS SO STIPULATED.
DATED: November 26, 2013

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/s/William J. Whitsitt
WILLIAM J. WHITSITT, Plaintiff

Trucker  Huss 
A Professional Corporation 
th
One Embarcadero Center, 12  Floor 
San Francisco, California  94111 

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DATED: November 26, 2013

TRUCKER  HUSS

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By: /s/Clarissa A. Kang
Clarissa A. Kang
Attorneys for Defendants
INDUSTRIAL EMPLOYERS DISTRIBUTORS
ASSOCIATION AND DISTRIBUTORS
ASSOCIATION WAREHOUSEMEN'S
PENSION TRUST

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DATED: November 26, 2013

LAW OFFICES OF KENNETH C. ABSALOM

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By: /s/Kenneth C. Absalom
Kenneth C. Absalom
Attorneys for Defendant
ILWU, Local 6

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I attest that I have obtained the concurrence of Mr. Whitsitt and Mr. Absalom in the filing

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of this document.

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DATED: November 26, 2013

TRUCKER  HUSS

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By: /s/Clarissa A. Kang
Clarissa A. Kang
Attorneys for Defendants
INDUSTRIAL EMPLOYERS DISTRIBUTORS
ASSOCIATION AND DISTRIBUTORS
ASSOCIATION WAREHOUSEMEN'S
PENSION TRUST

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STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT, Case No. 4:13-cv-00396-SBA
#1386952

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ORDER

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Pursuant to the foregoing Stipulation, and good cause appearing, the Court hereby orders

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that Plaintiff’s Second Amended Complaint is dismissed, without prejudice. Plaintiff shall file a

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Third Amended Complaint on or before December 20, 2013, that cures the defects of the Second

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Amended Complaint as discussed in the meet and confer with Plaintiff on November 21, 2013 and

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as set forth in IEDA and the Trust’s Motion to Dismiss (Dkt. No. 23), and that otherwise satisfies

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the requirements of Fed. R. Civ. P. 8 and Fed. R. Civ. P. 10.

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PURSUANT TO STIPLUATION, IT IS SO ORDERED.

Trucker  Huss 
A Professional Corporation 
th
One Embarcadero Center, 12  Floor 
San Francisco, California  94111 

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Date:

11/26/2013

JUDGE SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT, Case No. 4:13-cv-00396-SBA
#1386952

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CERTIFICATE OF SERVICE

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I, Margarita Fernandez, declare as follows:
I am a citizen of the United States, over the age of eighteen years and not a party to the
within action. I am employed in the City and County of San Francisco, California. My business
address is One Embarcadero Center, 12th Floor, San Francisco, California 94111. On the date
indicated below, I served the within:

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STIPULATION AND [PROPOSED] ORDER VOLUNTARILY
DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT
AND GRANTING PLAINTIFF LEAVE TO FILE A THIRD
AMENDED COMPLAINT, PURSUANT TO FED. R. CIV. P.
41(a)(2) AND FED. R. CIV. P. 15(a)(2)

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to the addressee(s) and in the manner indicated below:
William J. Whitsitt
2920 Fairmont Avenue
Stockton, CA 95206

Trucker  Huss 
A Professional Corporation 
th
One Embarcadero Center, 12  Floor 
San Francisco, California  94111 

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

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
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BY MAIL: I placed a true copy in a sealed envelope addressed as indicated above, on the abovementioned date. I am familiar with the firm's practice of collection and processing correspondence for
mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am
aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter
date is more than one day after date of deposit for mailing in affidavit.
BY ELECTRONIC MAIL: On the above-mentioned date, I served a full and complete copy of the
above-referenced document[s] by electronic mail to the person[s] at the email address[es] indicated.
BY OVERNIGHT DELIVERY: I placed a true copy in a sealed envelope addressed as indicated
above, on the above-mentioned date. I am familiar with Trucker Huss, APC’s practice in its above-described
San Francisco office for the collection and processing of correspondence for distributing by Federal Express,
UPS, and/or U.S. Postal Service Overnight Mail; pursuant to that practice, envelopes placed for collection at
designated locations during designated hours are deposited at the respective office that same day in the
ordinary course of business.

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I certify under penalty of perjury that the foregoing is true and correct, that the foregoing
document(s) were printed on recycled paper, and that this Certificate of Service was executed by
me on November 26, 2013, at San Francisco, California.
/s/Margarita Fernandez
Margarita Fernandez

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STIPULATION AND [PROPOSED] ORDER VOLUNTARILY DISMISSING PLAINTIFF’S SECOND AMENDED COMPLAINT AND
GRANTING PLAINTIFF LEAVE TO FILE A THIRD AMENDED COMPLAINT, Case No. 4:13-cv-00396-SBA
#1386952

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