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MIDDLEKAUFF v. BRITISH AMERICAN TOBACCO INDUSTRIES

United States District Court, Northern District of California, San Francisco Division


May 27, 2003

JAMES ROBERT MIDDLEKAUFF, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO THE ESTATE OF DEBORAH LEE MIDDLEKAUFF, DECEDENT; ANDREW JACOB MIDDLEKAUFF; KATHERINE ELIZABETH MIDDLEKAUFF, BY AND THROUGH HER GUARDIAN AD LITEM, JAMES ROBERT MIDDLEKAUFF; AND DOES ONE THROUGH TEN, INCLUSIVE, PLAINTIFFS,
v.
BRITISH AMERICAN TOBACCO INDUSTRIES, PLC, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Samuel Conti, United States District Judge

STIPULATION OF DISMISSAL AND ORDER

Pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii), Plaintiffs Andrew Jacob Middlekauff and Katherine Elizabeth Middlekauff ("Plaintiffs") and Defendants R.J. Reynolds Tobacco Company, Philip Morris Incorporated, Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, individually and as successor-in-interest to The American Tobacco Company, and Liggett Group, Inc., ("Defendants"), through their respective undersigned counsel, and Virginia Moore, executor of the estate of decedent Deborah Lee Middlekauff and executor of the estate of decedent's husband, original plaintiff James Robert Middlekauff, hereby stipulate and agree as follows:

1. The wrongful death and loss of consortium claims of James Robert Middlekauff, individually, and the survival claims of James Robert Middlekauff, as successor-in-interest to the estate of Deborah Lee Middlekauff, are dismissed with prejudice. All claims of the estate of Deborah Lee Middlekauff are dismissed with prejudice.

2. All claims of Andrew Jacob Middlekauff and Katherine Elizabeth Middlekauff for the wrongful death of Deborah Lee Middlekauff are dismissed without prejudice to their right to re-file an action for the wrongful death of Deborah Lee Middlekauff prior to October 21, 2003.

3. The parties further stipulate that, in the event that Plaintiffs Andrew Jacob Middlekauff and/or Katherine Elizabeth Middlekauff decide to re-file an action for the wrongful death of Deborah Lee Middlekauf, the date of re-filing shall relate back to the time of the original filing of the complaint by Plaintiffs, provided that the action is re-filed no later than October 21, 2003. Defendants stipulate that the statutes of limitation applicable to any causes of action for the wrongful death of Deborah Lee Middlekauff asserted by Plaintiffs Andrew Jacob Middlekauff and/or Katherine Elizabeth Middlekauff in the new complaint that were not time-barred as of the original date of the filing of the instant complaint shall be tolled to and including October 21, 2003, provided that the action for the wrongful death of Deborah Lee Middlekauf is re-filed no later than October 21, 2003.

4. In the event that Plaintiffs Andrew Jacob Middlekauff and/or Katherine Elizabeth Middlekauff decide to re-file an action for the wrongful death of Deborah Lee Middlekauff, prior to October 21, 2003, the parties agree that any discovery conducted in the instant case can be used in the new action.

5. Each party shall bear its own costs and fees with regard to dismissal pursuant to this Stipulation.

6. The respective attorneys, by their signatures below, represent and warrant that they have the consent of their respective clients, have discussed this Stipulation with them and have the authority to bind their respective clients by their signatures on this Stipulation. Virginia Moore represents that she is voluntarily entering into this dismissal. Plaintiffs Andrew Jacob Middlekauff and Katherine Elizabeth Middlekauff each represent that he/she is voluntarily entering into this dismissal after having received the advice of counsel.

THE STIPULATION OF THE PARTIES IS HEREBY ADOPTED AS THE ORDER OF THE COURT.

20030527

© 1992-2003 VersusLaw Inc.



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