Austin v. City of Oakland et al

Filing 84

ORDER by Judge Yvonne Gonzalez Rogers granting 83 Stipulation to Extend Plaintiff's Time to File a Third Amended Complaint. (ygrlc2, COURT STAFF) (Filed on 6/22/2018)

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BARBARA J. PARKER, City Attorney – SBN 069722
OTIS McGEE, Jr., Chief Assistant City Attorney – SBN 71885
COLIN T. BOWEN Supervising Attorney – SBN 152489
JASON M. ALLEN, Deputy City Attorney – SBN 284432
One Frank H. Ogawa Plaza, 6th Floor
Oakland, California 94612
Telephone: [phone], Fax: [phone]
Email: [e-mail]
31449/2446480
Attorneys for Defendant
CITY OF OAKLAND

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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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SAMUEL E. AUSTIN,
Plaintiff,

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v.
CITY OF OAKLAND, et al.
Defendants.

Case No. 17-CV-03284-YGR
STIPULATED REQUEST AND
[PROPOSED] ORDER TO EXTEND
PLAINTIFF’S TIME TO FILE A THIRD
AMENDED COMPLAINT
*As Modified by the Court*
Date:
N/A
Time:
N/A
Dept.:
Courtroom 1, 4th Floor
Judge:
Hon. Yvonne Gonzalez Rogers
Action Filed: June 7, 2017

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STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND PLIANTIFF’S TIME TO FILE A
THIRD AMENDED COMPLAINT / CASE NO. 17-CV-03284-YGR

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Pursuant to Civil Local Rules 6-1(b), 6-2 and 7-12, Plaintiff Samuel Austin and the City of

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Oakland (the “City”) hereby stipulate and jointly request the Court to extend Plaintiff’s time to file a

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Fourth Amended Complaint by approximately two weeks, to Monday, July 16, 2018.

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PROCEDURAL HISTORY

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On June 7, 2017, Plaintiff Samuel Austin initiated Austin I. [Dkt 1.] That same day,

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Magistrate Judge Laporte issued an order settling an initial case management conference and ADR

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deadlines. [Dkt. 2.] Plaintiff also filed a petition to proceed in forma pauperis, which the Court

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granted on June 13, 2017. [Dkt. 5.] On June 16, Magistrate Judge Laporte issued a report and

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recommendations to dismiss Plaintiff’s complaint. [Dkt. 6.]

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On June 19, Austin I was reassigned to Judge Gonzalez Rogers, and the Court Clerk issued

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notice setting a case management conference for September 18, 2017. [Dkt. 8, 9.] On July 13, 2017,

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the Court adopted Magistrate Judge Laporte’s report and recommendations and dismissed Plaintiff’s

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complaint, with leave to amend. [Dkt. 10.]

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On August 1, 2017, Austin filed his First Amended Complaint (“FAC”). [Dkt 11.] On

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August 7, the Court dismissed Plaintiff’s FAC with prejudice and ordered the Clerk to close the file.

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[Dkt. 12.] On August 16, 2017, Plaintiff filed a motion for reconsideration of the dismissal, [Dkt.

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13], which the Court granted on August 21, [Dkt. 14.] On August 22, 2017, Plaintiff filed a notice of

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appeal of the Court’s order of dismissal. [Dkt. 16.] On August 23, the Court Clerk issued notice

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setting the case management conference after the case reopened for October 17, 2017. [Dkt. 17.] On

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August 31, the Clerk vacated the October 17 case management conference, due to the notice of

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appeal. [Dkt. 19.]

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On September 15, 2017, the Ninth Circuit dismissed Plaintiff’s appeal for lack of

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jurisdiction, citing this Court’s order granting Austin’s motion for reconsideration. [Dkt 20]. On

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September 21, the Court ordered Plaintiff to provide the Court with service information for all

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Defendants and set a case management conference for December 11, 2017. [Dkt. 21.] Plaintiff filed a

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response to the Court’s request for service information on October 19, [Dkt. 24], and, on October 23,

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the Court issued an order directing the U.S. Marshal for the Northern District of California to serve

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all Defendants, based on the information provided by Plaintiff. [Dkt. 24.]
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STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND PLIANTIFF’S TIME TO FILE A
THIRD AMENDED COMPLAINT / CASE NO. 17-CV-03284-YGR

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On November 9, 2017, the parties filed a stipulated request to extend until December 8, the

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City’s time to respond to Plaintiff’s FAC. [Dkt. 28.] The parties sought that request so that the City

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of Oakland could determine which of the 17 individual defendants named in the FAC would be

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represented by the Office of the City Attorney for the City of Oakland. [See id.] On November 13,

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the Court granted the parties’ request and continued the Case Management Conference scheduled for

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December 11, 2017, to January 22, 2018. [Dkt. 29].

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On December 8, 2017, the City Defendants moved to dismiss the FAC under Federal Rule

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of Civil Procedure 12(b)(6). [Dkt. 31.] The hearing on that motion to dismiss was initially set for

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January 16, 2018. Plaintiff’s opposition to the motion was initially due on December 22, 2017.

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On December 18, Plaintiff asked the City Defendants to stipulate to extend his time to

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oppose the motion to dismiss by 14 days, to January 5, 2018. Accordingly, the City Defendants

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prepared and filed a stipulated request to modify the briefing schedule and reset the hearing on

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their motion to dismiss to January 30, 2018. [Dkt 36.] Because the requested change to the

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hearing date placed the hearing after the Case Management Conference set for January 22, 2018,

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the stipulation also requested for that CMC to be vacated and continued until sometime after the

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pleadings are settled. [Id.] On December 20, 2017, the Court granted the parties’ request as

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modified—vacating instead of rescheduling the hearing on the motion to dismiss. [Dkt. 37, at 7.]

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On January 18, 2018, the Court granted the motion to dismiss, dismissing, inter alia, “with

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prejudice all claims asserted in the FAC against the Individual Defendants,” and granting

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Plaintiff leave to amend certain of his claims against the City only. [Dkt. 42, at 4, 9-10.] The

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Court ordered Austin to file his Second Amended Complaint (“SAC”) by February 26, 2018. [Id.

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at 10.]

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On February 13, 2018, Austin filed a motion seeking to extend his time to file an SAC to

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March 14, 2018. [Dkt. 44.] The City did not oppose Austin’s request, [Dkt 45], which the Court

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granted on February 16. [Dkt. 46.]

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On February 28, 2018, Austin filed a second action, Austin v. City of Oakland et al., 18cv-01329 (“Austin II”). The Complaint in Austin II asserted the same factual allegations and legal

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STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND PLIANTIFF’S TIME TO FILE A
THIRD AMENDED COMPLAINT / CASE NO. 17-CV-03284-YGR

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theories against the same parties as did Austin’s complaints in Austin I. The complaint in Austin II

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may allege an additional cause of action for racial discrimination. [See Austin II, Dkt. 1.]

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On March, 13, 2018, the City filed an administrative motion to relate the Austin I and

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Austin II cases. [Dkt. 49.] On March 16, 2018, this Court ordered that the Austin I and Austin II

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cases are related, as the two cases allege nearly identical parties, and arise out of substantially

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similar factual and legal claims. Accordingly, Austin II was reassigned to this Court.

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On March 14, 201 7, Austin filed his Second Amended Complaint (“SAC”) in Austin I. [Dkt.

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50.] Austin’s SAC alleges the same claims of gender and disability discrimination, sexual

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harassment, and retaliation under Title VII and the ADA as did the previous complaints in Austin I

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and his complaint in Austin II. Austin may have indicated an intention to plead a claim for racial

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discrimination, though it is not clear that he has done so. [See id.]

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On March 21, 2018, the City filed a motion to consolidate Austin I and Austin II under
Federal Rule of Civil Procedure 42(a), [Dkt. 52], which the Court granted on March 27. [Dkt. 56]
On April 9, 2018, the City Defendants moved to dismiss Austin’s current complaints.

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[Dkt. 57.] On April 10, 2018, Defendants Service Employees International Union, Local 1021

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(the “Union”), and Steve Pitocchi (together, “Union Defendants”) moved to dismiss Austin’s

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claims against them. [Dkt. 62-64.]

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On May 30, 2018, the Court granted the City Defendants’ and the Union Defendants’

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motions to dismiss. [Dkt. 80.] In that order, the Court dismissed with prejudice all of Austin’s claims

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against individual defendants, and “all of Austin’s claims other than those of racial discrimination

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against the City and the Union,” which the Court dismissed without prejudice. [Id. at 2, 17-19.]

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Accordingly, the Court gave Austin leave to file a Third Amended Complaint, alleging claims of

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racial discrimination against the City and the Union, by June 30, 2018. [Id. at 19.]

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On Wednesday, June 20, 2018, Austin contacted counsel for the City by telephone and

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requested a two-week extension of his time to file a Third Amended Complaint. The City agreed to

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stipulate to Austin’s requested extension. Following the discussion with Austin, counsel for the City

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contacted counsel for the Union to discuss Mr. Austin’s request. On June 21, 2018, counsel for the

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Union confirmed that the Union would stipulate to Austin’s requested extension.
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STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND PLIANTIFF’S TIME TO FILE A
THIRD AMENDED COMPLAINT / CASE NO. 17-CV-03284-YGR

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The requested extension will allow Plaintiff Austin, proceeding in propria persona,

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additional time to prepare his Third Amended Complaint. Neither the City nor the Union opposes

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Plaintiff Austin’s request for additional time.

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STIPULATION

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Based on the foregoing, the parties hereby stipulate, subject to the Court’s approval, to

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extend Plaintiff Austin’s time to file a Third Amended Complaint by approximately two weeks, to

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Monday, July 16, 2018.

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IT IS SO SIPULATED.
Dated: June 21, 2018
PLAINTIFF SAMUEL E. AUSTIN

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By: __/s/ Samuel E. Austin__________________________
Samuel E. Austin
PLAINTIFF IN PRO PER

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Dated: June 21, 2018
WEINBERG, ROGER & ROSENFELD
A Professional Corporation

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By: __/s/ Anthony J. Tucci_________________________
ANTHONY J. TUCCI
Attorneys for Defendant
SERVICE EMPLOYEES INTERNATIONAL UNION,
LOCAL 1021

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Dated: June 20, 2018
BARBARA J PARKER, City Attorney
OTIS McGEE, Jr., Chief Assistant City Attorney
COLIN BOWEN Supervising Attorney
JASON ALLEN, Deputy City Attorney
By: __/s/ Jason M. Allen_________________________
Attorneys for Defendant
CITY OF OAKLAND

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STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND PLIANTIFF’S TIME TO FILE A
THIRD AMENDED COMPLAINT / CASE NO. 17-CV-03284-YGR

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ATTESTATION PURSUANT TO LOCAL RULE 5-1(I)(3)
I, Jason M. Allen, attest that I obtained concurrence in the filing of this stipulation from

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the signatories, Plaintiff Samuel E. Austin and Anthony J. Tucci, counsel for Defendant Service

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Employees International Union, Local 1021.

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Dated: June 21, 2018

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BARBARA J PARKER, City Attorney
OTIS McGEE, Jr., Chief Assistant City Attorney
COLIN BOWEN Supervising Attorney
JASON ALLEN, Deputy City Attorney

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By: __/s/ Jason M. Allen_______________________
Attorneys for Defendant
CITY OF OAKLAND

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STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND PLIANTIFF’S TIME TO FILE A
THIRD AMENDED COMPLAINT / CASE NO. 17-CV-03284-YGR

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[PROPOSED] ORDER
Based on the parties’ stipulation and good cause appearing, the Court grants the parties’

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stipulated request to extend Plaintiff Austin’s time to file a Third Amended Complaint by

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approximately two weeks, to Monday, July 16, 2018.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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June 22, 2018
DATED: ________________________

_______________________________________
Hon. Yvonne Gonzalez Rogers
United States District Judge

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STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND PLIANTIFF’S TIME TO FILE A
THIRD AMENDED COMPLAINT / CASE NO. 17-CV-03284-YGR

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PROOF OF SERVICE
Samuel Austin v. City of Oakland, et al
United States District Court Case No. 17-cv-03284-YGR
I am a resident of the State of California, over the age of eighteen years, and not a party to
the within action. My business address is City Hall, One Frank H. Ogawa Plaza, 6th Floor,
Oakland, California 94612. On the date set forth below, I served the within documents:
STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND
PLAINTIFF’S TIME TO FILE A THIRD AMENDED COMPLAINT
by transmitting via facsimile the document(s) listed above to the fax number(s)
set forth below, or as stated on the attached service list, on this date before 5:00
p.m.
by causing the document(s) listed above to be placed into a sealed envelope with
postage thereon fully prepaid, in the United States mail at Oakland, California
addressed as set forth.

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by causing personal delivery by (name) of the document(s) listed above to the
person(s) at the address(es) set forth below.

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by personally delivering the document(s) listed above to the person(s) at the
address(es) set forth below.

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by placing the document(s) listed above in a sealed envelope and causing such
envelope to be sent by Federal Express/ Express Mail.

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Samuel E. Austin
1370 Tersk Court
Patterson, CA 95363
510-626-7750

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Plaintiff in Pro Per

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I am readily familiar with the City of Oakland’s practice of collection and processing
correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal
Service on that same day with postage thereon fully prepaid in the ordinary course of business.
I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
Executed on June 21, 2018, at Oakland, California.

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/s/ Jason M. Allen
Jason M. Allen

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STIPULATED REQUEST AND [PROPOSED] ORDER TO EXTEND PLIANTIFF’S TIME TO FILE A
THIRD AMENDED COMPLAINT / CASE NO. 17-CV-03284-YGR