Behrens v. Savedra et al

Filing 27

STIPULATION AND ORDER of Settlement. Signed by Magistrate Judge Howard R. Lloyd on 7/13/2009. (hrllc2, COURT STAFF) (Filed on 7/13/2009)

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SHEA & SHEA A PROFESSIONAL LAW CORPORATION MICHAEL M. SHEA (State Bar No. 38396) MICHAEL M. SHEA, JR. (State Bar No. 126983) MARK B. O'CONNOR (State Bar No. 126960) NICOLE N. HANCOCK (State Bar No. 221457) THE JAMES SQUARE BUILDING 255 NORTH MARKET STREET, SUITE 190 SAN JOSE, CA 95110 Phone: [phone] Fax: [phone] Attorneys for Plaintiff JOSEPH P. RUSSONIELLO (CSBN 44332) United States Attorney JOANN M. SWANSON (CSBN 88143) Chief, Civil Division CLAIRE T. CORMIER (CSBN 154364) Assistant United States Attorney 150 Almaden Blvd., Suite 900 San Jose, California 95113 Telephone: [phone] FAX: [phone] [e-mail] Attorneys for United States of America

*ORDER E-FILED 7/13/2009*

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION VERNON ANDREW BEHRENS, Plaintiff, v. UNITED STATES OF AMERICA, Defendant ) ) ) ) ) ) ) ) ) ) No. 08-04274 HRL STIPULATION OF SETTLEMENT; X ROP XXXX [PXXXOSED] ORDER

IT IS HEREBY STIPULATED by and between plaintiff Vernon Andrew Behrens and defendant United States of America, as follows: 1. The parties do hereby agree to settle and compromise the above-entitled personal injury action under the terms and conditions set forth herein.

STIPULATION OF SETTLEMENT; [PROPOSED] ORDER xxxxxxxxxx C a s e No. 08-04274 HRL

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2. The United States of America, defendant, agrees to pay to the plaintiff the sum of Twenty-five thousand dollars ($25,000.00), which sum shall be in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof, resulting, and to result, from the same subject matter that gave rise to the above-captioned lawsuit, for which plaintiff or his heirs, executors, administrators, or assigns, and each of them, now have or may hereafter acquire against the United States of America or its agents, servants, and employees. 3. Plaintiff and his heirs, executors, administrators or assigns hereby agree to accept the sum of Twenty-five thousand dollars ($25,000.00) in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof which they may have or hereafter acquire against the United States of America or its agents, servants and employees on account of the same subject matter that gave rise to the above-captioned lawsuit. Plaintiff and his heirs, executors, administrators or assigns further agree to reimburse, indemnify and hold harmless the United States of America and its agents, servants or employees from any and all such causes of action, claims, liens, rights, or subrogated or contribution interests incident to or resulting from further litigation or the prosecution of claims by plaintiff or his heirs, executors, administrators or assigns against any third party or against the United States of America. 4. This stipulation for compromise settlement is entered into by all parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation. This settlement does not constitute an admission of liability or fault on the part of the defendant. 5. This agreement may be pled as a full and complete defense to any subsequent action or other proceeding which arises out of the claims released and discharged by the agreement. 6. It is also agreed, by and among the parties, that the settlement amount of

STIPULATION RE SETTLEMENT; xxxxxxxxxx ORDER [PROPOSED] 1 C a s e No. C 05-00233 HRL

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Twenty-five thousand dollars ($25,000.00) paid by the United States of America to plaintiff represents the entire amount of the compromise settlement and that the respective parties will each bear their own costs, fees, and expenses and that any attorneys' fees owed by the plaintiff will be paid out of the settlement amount and not in addition thereto. 7. It is also understood by and among the parties that, pursuant to Title 28, United States Code, Section 2678, attorneys' fees for services rendered to plaintiff in connection with this action shall not exceed 25 per centum of the amount of the compromise settlement. 8. Payment of the settlement amount will be made by a check payable to "Vernon A. Behrens and his attorneys, Shea & Shea." Plaintiff and his attorneys are responsible for payment of any taxes that may be due on the settlement proceeds. Defendant makes no representation as to any tax consequences or liabilities Plaintiff or his attorney may incur as a result of this settlement. 9. The parties will execute a dismissal with prejudice of this action, but the dismissal with prejudice shall not be filed with the Court until payment of the settlement consideration. Plaintiff is advised that settlement checks are sometimes not available for eight to ten weeks after approval of the settlement by the court. Counsel for the United States of America will notify plaintiff's counsel when the settlement check is available. Provided that plaintiff has provided defendant's counsel with the signed stipulation of dismissal, defendant's counsel will, within ten (10) days of receipt of the settlement check, deliver the settlement check to plaintiff's counsel. 10. Plaintiff hereby releases and forever discharges the United States Postal Service, the United States of America and any and all of their past and present officials, employees, agents, attorneys, their successors and assigns, from any and all obligations, damages, liabilities, actions, causes of actions, claims and demands of any kind and nature whatsoever, whether suspected or unsuspected, at law or in equity, known or unknown, arising out of the allegations set forth in plaintiff's pleadings in this action. 11. The provisions of California Civil Code Section 1542 are set forth below:

STIPULATION RE SETTLEMENT; xxxxxxxxxx ORDER [PROPOSED] -2C a s e No. C 05-00233 HRL

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"A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Plaintiff, having been apprised of the statutory language of Civil Code Section 1542 by his attorneys, and fully understanding the same, nevertheless elects to waive the benefits of any and all rights he may have pursuant to the provision of that statute and any similar provision of federal law. Plaintiff understands that, if the facts concerning injuries or liability for damages pertaining thereto are found hereinafter to be other than or different from the facts now believed by him to be true, the Agreement shall be and remain effective notwithstanding such material difference. 12. The parties agree that this stipulation is intended to be a full and final settlement of all claims arising out of the allegations set forth in plaintiff's pleadings in this action. Plaintiff agrees to indemnify and hold harmless defendant United States of America from any and all claims, demands, obligations, liens, and lawsuits brought against the United States of America, its agencies or employees, including but not limited to the United States Postal Service, arising out of the allegations set forth in plaintiff's complaint in this action. 13. This instrument shall constitute the entire agreement between the parties, and it is expressly understood and agreed that the agreement has been freely and voluntarily entered into by the parties hereto with the advice of counsel, who have explained the legal effect of this agreement. The parties further acknowledge that no warranties or representations have been made on any subject other than as set forth in this Agreement. This Agreement may not be altered, modified or otherwise changed in any respect except by writing, duly executed by all of the parties or their authorized representatives. 14. The parties agree that, should any dispute arise with respect to the implementation of the terms of this Agreement, Plaintiff shall not seek to rescind the Agreement and pursue his original causes of action. Plaintiff's sole remedy in such a dispute is an action to enforce the Agreement in district court. The parties agree that the district court will retain jurisdiction over this matter for the purposes of resolving any dispute alleging a breach of this Agreement.
STIPULATION RE SETTLEMENT; [PROPOSED] ORDER xxxxxxxxxx -3C a s e No. C 05-00233 HRL

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15. This settlement agreement may be signed in counterparts. Respectfully submitted, DATED: July 9, 2009

4 5 6 7 8 9 10 /s/ Claire T. Cormier 11 12 13 14 15 16 /s/ Nicole N. Hancock 17 18 19 20 21 22 23 24 25 26 27 28 I, Claire T. Cormier, hereby attest that I have on file all holograph signatures for any signatures indicated by a "conformed" signature (/s/) within this e-filed document.
STIPULATION RE SETTLEMENT; [PROPOSED] ORDER xxxxxxxxxx -4C a s e No. C 05-00233 HRL
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/s/ Vernon A. Behrens Vernon Andrew Behrens Plaintiff DATED: July 9, 2009 JOSEPH P. RUSSONIELLO United States Attorney

CLAIRE T. CORMIER1 Assistant United States Attorney Approved as to form:

DATED: July 8, 2009

SHEA & SHEA

Attorneys for Plaintiff

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STIPULATION RE SETTLEMENT; [PROPOSED] ORDER xxxxxxxxxx -5C a s e No. C 05-00233 HRL

[PROPOSED] XXXXXXXXXORDER Upon stipulation of the parties, and good cause appearing, it is so ordered.

July 13, 2009 DATE: ______________________

________________________________________ HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE