Brendan Huerta v. United States Department of Agriculture et al

Filing 28

STIPULATION AND ORDER re 27 STIPULATION WITH PROPOSED ORDER withdrawing motion to dismiss and allowing filing of amended complaint filed by Agriculture Research Service, Brendan Huerta, United States Department of Agriculture, Mo tions terminated: 27 STIPULATION WITH PROPOSED ORDER withdrawing motion to dismiss and allowing filing of amended complaint filed by Agriculture Research Service, Brendan Huerta, United States Department of Agriculture, 14 MOTION to Dismiss for Lack of Jurisdiction filed by Agriculture Research Service, United States Department of Agriculture.. Signed by Judge Kandis A. Westmore on 7/28/16. (sisS, COURT STAFF) (Filed on 7/28/2016)

1 BRIAN J. STRETCH (CABN 163973)
United States Attorney
2 SARA WINSLOW (DCBN 457643)
Chief, Civil Division
3 CLAIRE T. CORMIER (CABN 154364)
Assistant United States Attorney
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150 Almaden Boulevard, Suite 900
San Jose, California 95113
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Telephone: [phone]
FAX: [phone]
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[e-mail]
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Attorneys for Federal Defendants
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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BRENDAN HUERTA,
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Plaintiff,
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v.
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UNITED STATES DEPARTMENT OF
AGRICULTURE, AGRICULTURE
RESEARCH SERVICE, DOES 1-20,

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CASE NO. CV 16-00434 KAW
STIPULATION AND [PROPOSED] ORDER
WITHDRAWING MOTION TO DISMISS AND
ALLOWING PLAINTIFF TO FILE AMENDED
COMPLAINT

Defendants.
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The federal defendants filed a motion to dismiss which is currently set for hearing on August 18,

20 2016. On July 14, 2016, defendants’ counsel emailed plaintiff’s counsel advising him that defendants’
21 investigation had discovered that the person involved in the incident at issue in this case was an
22 employee of a federal contractor, not a federal employee. Accordingly, defendants contend that,
23 pursuant to the Federal Tort Claims Act, the United States is not liable for the torts of its contractors,
24 who are not considered “employees” under the FTCA. Defendants’ counsel sent a redacted copy of the
25 contract at issue to plaintiff’s counsel on July 14, 2016, and, on July 21, 2016, emailed plaintiff’s
26 attorney with information regarding the identity of the individuals involved in the subject incident.
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In order to allow plaintiff an opportunity to amend the complaint, the parties hereby

28 STIPULATE AND REQUEST that defendants’ currently pending motion to dismiss be withdrawn and
STIPULATION WITHDRAWING MOTION AND ALLOWING PLAINTIFF TO FILE AMENDED COMPLAINT
CASE NO. CV 16-00434 KAW

1 that plaintiff shall have until August 12, 2016 to file an amended complaint. The federal defendants shall
2 have 30 days after the filing of the amended complaint to answer, move, or otherwise respond to the
3 amended complaint.
IT IS SO STIPULATED.

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Respectfully submitted,

6 Dated: July 26, 2016

BRADY LAW GROUP
/s/

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By:

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STEVEN J. BRADY
Attorney for Plaintiff

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Dated: July 26, 2016

BRIAN J. STRETCH
UNITED STATES ATTORNEY

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/s/

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By:
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CLAIRE T. CORMIER1
Assistant U.S. Attorney

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[PROPOSED] ORDER

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Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY ORDERED

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17 that the federal defendants’ currently pending motion to dismiss is withdrawn. The hearing on that
18 motion, currently scheduled for August 18, 2016, is hereby vacated. Plaintiff shall file an amended
19 complaint no later than August 12, 2016. The federal defendants shall have 30 days from the date of
20 filing of the amended complaint to answer, move, or otherwise respond to the amended complaint.
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7/28

Dated:

, 2016
KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE

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I, Claire T. Cormier, hereby attest that I have been authorized to submit the electronic
signatures indicated by a “conformed” signature (/s/) within this e-filed document.
STIPULATION WITHDRAWING MOTION AND ALLOWING PLAINTIFF TO FILE AMENDED COMPLAINT
CASE NO. CV 16-00434 KAW