Fireman's Fund Insurance Company v. Berry et al

Filing 27

ORDER Granting 26 Stipulation and Order for Disbursement of Funds, Dismissal of Counter-Claim and Closure of Case. Clerk of Court shall disburse funds on deposit in the Court's Registry including all interest on those funds as follows: Unite d States Department of Justice on behalf of Kathleen Sebelius, the sum of $15,456.40. To John Berry and Ganz and Hauf, the sum of $461,408.79 plus interest. IT IS FURTHER ORDERED that plaintiff Fireman's Fun Insurance Company is disch arged from further liability to John Berry and Kathleen Sebelius in the 8th Judicial Court case. Clerk is directed to close this matter. Signed by Judge Lloyd D. George on 9/29/11. (Copies have been distributed pursuant to the NEF - cc: USDC Finance - EDS)

1
2
3
4
5
6
7
8
9
10

Andrew B. Downs
Nevada Bar No. 8052
E-Mail: [e-mail]
BULLIVANT HOUSER BAILEY PC
601 California Street, Suite 1800
San Francisco, California 94108
Telephone: [phone]
Facsimile: 415.352.2701
Kristol Bradley Ginapp
Nevada Bar No. 8468
E-Mail: [e-mail]
BULLIVANT HOUSER BAILEY PC
3883 Howard Hughes Parkway, Suite 550
Las Vegas, Nevada 89169
Telephone: [phone]
Facsimile: 702.650.2995
Attorneys for Plaintiff Fireman's Fund
Insurance Company

601 California Street, Suite 1800
San Francisco, California 94108
Telephone: [phone]
Facsimile: 415.352.2701

Bullivant|Houser|Bailey PC

11
12

UNITED STATES DISTRICT COURT

13

DISTRICT OF NEVADA

14 FIREMAN'S FUND INSURANCE
COMPANY, a corporation,
15
Plaintiff,
16
v.
17
JOHN BERRY, an individual; KATHLEEN
18 SEBELIUS in her capacity as Secretary of
Health and Human Services, United States of
19 America,
20

Case No.: 2:11-cv-1029-LDG-CWH

Defendants.

21
AND RELATED COUNTERCLAIM.
22
23

STIPULATION AND ORDER FOR DISBURSEMENT OF FUNDS, DISMISSAL OF
COUNTER-CLAIM AND CLOSURE OF CASE

24
25

Plaintiff and counterdefendant Fireman’s Fund Insurance Company, defendant and

26

counterclaimant John Berry and defendant Kathleen Sebelius in her capacity as Secretary of

27

Health and Human Services, United States of America, stipulate as follows:

28
–1–

1
2

1.

The funds currently on deposit in the Registry of the Court, including all interest

earned on those funds while on deposit, shall be disbursed as follows:
(a)

3

To the Center for Medicare Services on behalf of the United States of

4

America, the sum of $15,456.40. The Clerk’s check shall be made payable to “United States

5

Department of Justice.”
(b)

6

To defendant and counterclaimant John Berry, $461,408.79 plus all

7

interest earned. The Clerk’s check shall be made payable to “John Berry and Ganz & Hauf, his

8

attorneys.”

9
10

601 California Street, Suite 1800
San Francisco, California 94108
Telephone: [phone]
Facsimile: 415.352.2701

Bullivant|Houser|Bailey PC

11

2.

The counterclaim of John Berry filed July 18, 2011 (Docket #8) shall be

dismissed with prejudice, with each party to bear its own fees and costs.
3.

Pursuant to 28 U.S.C. § 2361, plaintiff Fireman’s Fund Insurance Company is

12

discharged from further liability to defendants John Berry and Kathleen Sebelius for the

13

payment of any portion of the Judgment in Case No. A-06-526936-C in the Eighth Judicial

14

District Court of the State of Nevada for Clark County entitled ”John Berry v. Moshe Elazar, et

15

al.” This discharge from liability shall not extend to any extra-contractual claims presently held

16

by non-party Moshe Elazar, nor to any claims which defendant John Berry may later acquire as

17

assignee of Moshe Elazar or by execution upon Moshe Elazar.

18

4.

It is the intention of the parties to this Stipulation that nothing in it or shall extend

19

to any extra-contractual claims presently held by non-party Moshe Elazar, nor to any claims

20

which defendant John Berry may later acquire as assignee of Moshe Elazar or by execution

21

upon Moshe Elazar.

22

5.

Berry, shall no later than ten court days after disbursement pursuant to paragraph

23

1(b), file an Acknowledgement of Partial Satisfaction of Judgment in an amount equal to the full

24

amount disbursed pursuant to paragraphs 1(a) and 1(b) in Case No. A-06-526936-C in the

25

Eighth Judicial District Court of the State of Nevada, for Clark County, entitled “John Berry v.

26

Moshe Elazar, et al.” The court will retain jurisdiction for purposes of enforcing Berry’s

27

obligation to file that Acknowledgement of Partial Satisfaction of Judgment.

28
–2–

1

DATED: September 28, 2011
BULLIVANT HOUSER BAILEY PC

2
3

By /s/ Andrew B. Downs
Andrew B. Downs
Nevada Bar No. 8052
Kristol Bradley Ginapp
Nevada Bar No. 8468

4
5
6
7

Attorneys for Plaintiff and Counterdefendant
Fireman's Fund Insurance Company

8
9

DATED: September 28, 2011

10

GANZ & HAUF

601 California Street, Suite 1800
San Francisco, California 94108
Telephone: [phone]
Facsimile: 415.352.2701

Bullivant|Houser|Bailey PC

11
12

By /s/ Marjorie Hauf (by e-mail authorization)
Adam Ganz
Nevada Bar No. 6650
Marjorie Hauf
Nevada Bar No. 8111
Ida M. Ybarra
Nevada Bar No. 11327

13
14
15
16

Attorneys for Defendant and Counterclaimant John
Berry

17
18
19
20
21

DATED: September 28, 2011
DANIEL G. BOGDEN
United States Attorney, District of Nevada
ROGER W. WENTHE
Assistant United States Attorney

22
23
24
25
26
27

By /s/ Roger W. Wenthe (by e-mail authorization)
Roger W. Wenthe
Nevada Bar No. 8920
Attorneys for Defendant Kathleen Sebelius
ORDER
The parties having stipulated and good cause appearing,

28
–3–

1

IT IS HEREBY ORDERED that the Clerk of the Court shall disburse the funds on

2

deposit in the Court’s Registry (Docket # 11) including all interest earned on those funds as

3

follows:
(a)

4
5

Kathleen Sebelius, the sum of $15,456.40.
(b)

6
7
8
9

To the United States Department of Justice on behalf of defendant

To John Berry and Ganz & Hauf, his attorneys, the sum of $461,408.79

plus all interest earned while those funds were on deposit.
IT IS FURTHER ORDERED that plaintiff Fireman’s Fund Insurance Company is
discharged from further liability to defendants John Berry and Kathleen Sebelius for the

601 California Street, Suite 1800
San Francisco, California 94108
Telephone: [phone]
Facsimile: 415.352.2701

payment of any portion of the Judgment in Case No. A-06-526936-C in the Eighth Judicial

11
Bullivant|Houser|Bailey PC

10

District Court of the State of Nevada for Clark County entitled ”John Berry v. Moshe Elazar, et

12

al.” This discharge from liability shall not extend to any extra-contractual claims presently held

13

by non-party Moshe Elazar, nor to any claims which defendant John Berry may later acquire as

14

assignee of Moshe Elazar or by execution upon Moshe Elazar.

15

The Court retains and reserves jurisdiction over the parties for purposes of enforcing

16

Berry’s obligation to file that Acknowledgement of Partial Satisfaction of Judgment in the

17

underlying state court action.

18
19

The Clerk is directed to close this matter.
DATED:

20
21

United States District Judge

22
23
24

13548267.1

*****

25
26
27
28
–4–