Ferreyra v. Good Samaritan Hospital et al

Filing 40

ORDER SETTING DEADLINE FOR FILING STIPULATED DISMISSAL re 39 Affidavit filed by Frank Ferreyra. Deadline to file stipulated dismissal on or before 12/22/2008. Failure to do so will result in a Fed. R. Civ. P. 41(b) dismissal for lack of prosecution. Signed by Judge James Ware on 12/16/2008. (ecg, COURT STAFF) (Filed on 12/16/2008)

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STEVEN P. COHN, ESQ. SBN 96808 ADVOCACY CENTER FOR EMPLOYMENT LAW 2084 Alameda Way San Jose, California 95126 Telephone: [phone] Attorneys for Plaintiff FRANK FERREYRA

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F D IS T IC T O R FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION FRANK FERREYRA, Plaintiff, vs. GOOD SAMARITAN HOSPITAL, LP, et al, Defendants Case No. C0702581 HRL

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DECLARATION OF STEVEN P. COHN RE: ORDER TO SHOW CAUSE ORDER SETTING DEADLINE FOR FILING STIPULATED DISMISSAL

I, Steven P. Cohn, have personal knowledge of and am competent to testify to the following:

I am the attorney for Plaintiff Frank Ferreyra and submit this declaration in opposition to dismissal of the case and request that the matter be deferred for 60 days to allow completion of mediation or, alternately, settlement.

The case was submitted to mediation before the Honorable Ellen James on August 19, 2008 and conditionally settled at that time, subject to entering a formal Release to be prepared and containing broader terms used for employment case resolution. A second, revised settlement agreement was received on October 10th from Defendant Good Samaritan Hospital (Hospital Corporation of America) which my office forwarded to Mr. Ferreyra for his review, with a separate Release having been received from the Union at about this time and also forwarded to Mr. Ferreyra. Prior to Mr. Ferreyra's approval, a dispute arose in which Plaintiff Ferreyra reports that the JAMS settlement was
Declaration of Steven P. Cohn, Esq.

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breached, with no particulars. Mr. Ferreyra is presently on vacation and has not returned our calls nor responded to our correspondence regarding the Order to Show Cause in this matter.

Among the terms of settlement agreed to at mediation was that Plaintiff would be allowed to voluntarily resign, by mutual agreement. His firing, after seventeen years of employment, was to be redacted from his employment file. We have subsequently learned, however, that the code used for this voluntarily resignation that was placed in his personnel file, in fact, means "not eligible for rehire", which was not agreed to. In the time since mediation, the parties have winnowed down the Hospital facilities under the HCA umbrella that Plaintiff may not apply for work, while Plaintiff has requested a return to JAMS due to the reported breach.

It was previously anticipated that a dismissal would be promptly filed before the Order to Show Cause hearing and I had requested a Stipulation for continuance of same of counsel on Thursday, October 16th given that Plaintiff had not signed the subject Releases or authorize my dismissal of the case. It had previously been expected that the case would be dismissed prior to that date. HCA's attorney , as well as myself, attended the October 20th Order to Show Cause hearing upon learning on Friday, October 18th that no Stipulation had been submitted.

I anticipate that Plaintiff will be responding to me by next week and all counsel will have an opportunity to attempt resolution of the matter over the following several weeks. I have asked for 60 days continuance to allow the parties an opportunity to promptly return to JAMS to resolve any continuing dispute and get a dismissal on file or return to the court to petition to return the case to the active trial calendar at that time.

I have copied the parties to the action with this Declaration via email this date.

I declare under penalty of perjury that the foregoing is true and correct at San Jose, California, this 24th day of October, 2008.
Declaration of Steven P. Cohn, Esq.

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D**eORDER *** 2008 * at d: October 24, Based on counsel's representation above, the Court orders that on or before December 22, By: 2008, the parties shall file their Stipulated Dismissal pursuant to the Court's order at the hearing STEVEN P. COHN on the Order to Show Cause Re: Settlement on October 20, 2008. Failure to do so will result in a Fed. R. Civ. P. 41(b) dismissal for lack of prosecution.

Dated: December 16, 2008

______________________________ JAMES WARE United States District Judge

Declaration of Steven P. Cohn, Esq.

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