Doe v. City of San Jose et al

Filing 65

ORDER by Judge Whyte denying John Doe's Motions to Vacate his Settlement with the County Defendants and a Request for Further Information re 60 , 62 (rmwlc1, COURT STAFF) (Filed on 9/29/2008) Modified on 10/23/2008 (dhm, COURT STAFF).

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ORDER DENYING JOHN DOE'S MOTIONS TO VACATE HIS SETTLEMENT WITH THE COUNTY DEFENDANTS AND A REQUEST FOR FURTHER INFORMATION No. C-06-06307 RMW TSF

E-FILED on

9/29/2008

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

JOHN DOE, Plaintiff, v. CITY OF SAN JOSE, et al. Defendants.

No. C-06-06307 RMW ORDER DENYING JOHN DOE'S MOTIONS TO VACATE HIS SETTLEMENT WITH THE COUNTY DEFENDANTS AND A REQUEST FOR FURTHER INFORMATION [Re Docket Nos. 60, 62]

The court held a hearing on July 18, 2008 regarding the court's order to show cause after John Doe (Larry Lundy) failed to appear for a case management conference following the withdrawal of his attorneys. See Docket Nos. 50, 56. At the hearing, Mr. Lundy expressed his desire to move to set aside his settlement with the county defendants and to continue his case against the city defendants. The court therefore set a deadline for Mr. Lundy to file a motion to vacate his settlement with the County defendants. See Docket No. 61. Mr. Lundy has since filed two documents, styled as motions for a "bill of particulars," submitting bills that he felt that the County had agreed to pay as part of his settlement. At the hearing on those motions, Mr. Lundy raised a variety of issues regarding his representation by

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counsel up to the settlement agreement. The arguments and materials submitted to the court do not, however, provide a basis for vacating Mr. Lundy's settlement with the County defendants. Accordingly, Mr. Lundy's motions for a "bill of particulars" or to set aside his settlement are denied. The court has concerns about what transpired between Mr. Lundy and his former counsel, John L. Burris and Adante Pointer. Mr. Lundy states that his retention agreement with his attorneys provided for him to receive 60% of any recovery from his case, and that he has so far received nothing. Mr. Lundy also states that he did not sign the settlement agreement, but that his attorneys forged his signature. The County defendants have submitted the settlement agreement and a variety of materials related to it. See Docket No. 63. The County defendants agreed to settle for $25,000. On January 18, 2008, the County issued a check for that amount to "Burris, John L. Law Offices Of In Trust for Larry Lundy." The check was endorsed by John Burris and appears to have been cashed on February 1, 2008. The materials filed by the County also permit the following comparison:

Figure 1: Larry Lundy's signature on the Settlement Agreement.

Figure 2: Larry Lundy's handwriting and signature from his pro se filings with the court. Docket No. 59.

The court hereby requests Mr. Lundy's former counsel, John L. Burris and Adante Pointer, to each file declarations with the court by October 17, 2008 addressing: (1) when, where & by whom
ORDER DENYING JOHN DOE'S MOTIONS TO VACATE HIS SETTLEMENT WITH THE COUNTY DEFENDANTS AND A REQUEST FOR FURTHER INFORMATION No. C-06-06307 RMW TSF 2

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the settlement agreement with the County was signed, (2) whether the settlement agreement was signed by Mr. Lundy or on his behalf, and (3) whether any of the monies held in trust by the Law Offices of John L. Burris have been distributed and, if so, to whom, when, and in what amounts. Mr. Burris and Mr. Pointer may include any other further explanation or information they wish.

DATED:

9/26/2008 RONALD M. WHYTE United States District Judge

ORDER DENYING JOHN DOE'S MOTIONS TO VACATE HIS SETTLEMENT WITH THE COUNTY DEFENDANTS AND A REQUEST FOR FURTHER INFORMATION No. C-06-06307 RMW TSF 3

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Notice of this document has been electronically sent to: Counsel for Defendants: Clifford S. Greenberg [e-mail]

Counsel are responsible for distributing copies of this document to co-counsel that have not registered for e-filing under the court's CM/ECF program. Notice of this document has been mailed to: Plaintiff: Larry Lundy 1071 Culloden Court San Jose, CA 95121 and Larry Lundy Mother Olson's Inn 202 S. 11th Street San Jose, CA 95112 Plaintiff's Former Counsel: Adante Pointer Law Offices of John L. Burris 7677 Oakport Street Suite 1120 Oakland, CA 94621 John L. Burris Law Offices of John L. Burris Airport Corporate Centre 7677 Oakport Street Suite 1120 Oakland, CA 94621

Dated:

9/29/08

TSF Chambers of Judge Whyte

ORDER DENYING JOHN DOE'S MOTIONS TO VACATE HIS SETTLEMENT WITH THE COUNTY DEFENDANTS AND A REQUEST FOR FURTHER INFORMATION No. C-06-06307 RMW TSF 4