United States District Court, N.D. California, San Francisco Division
December 15, 2005.
OWEN PATRICK O'DONNELL, DOUGLAS R. BARNETT, C. PAUL JOHNSON, and GERALD C. VANOLI, each individually and on behalf of all other similarly situated shareholders of Napa Community Bank, Plaintiffs,
CAPITOL BANCORP LTD., a Michigan corporation, Defendant. AND RELATED COUNTERCLAIM.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
JOINT STIPULATION TO DISMISS COMPLAINT AND COUNTERCLAIM WITHOUT
PREJUDICE AND ORDER
Pursuant to Federal Rule of Civil Procedure 41(a)(1), this
Stipulation to Dismiss Complaint and Counterclaim Without
Prejudice is entered into between Plaintiffs and
Counterdefendants OWEN PATRICK O'DONNELL, DOUGLAS R. BARNETT, C.
PAUL JOHNSON AND GERALD C. VANOLI (collectively "Plaintiffs'),
Counterdefendant NAPA COMMUNITY BANK ("NCB"), Defendant and
Counterclaimant, CAPITOL BANCORP LTD. ("Capitol") and
Counterclaimant JOSEPH D. REID ("Reid"), by and through their
respective counsel of record, with reference to the following
1. Plaintiffs filed a complaint entitled O'Donnell v. Capitol
Bancorp Ltd., No. C-05-2601 (PJH) on June 27, 2005 asserting
claims under the Securities Act of 1933 and the Securities
Exchange Act of 1934 as well as state-law claims for breach of
fiduciary duty and abuse of control (the "Complaint").
2. Capitol answered the Complaint. Capitol and Reid also filed
a Counterclaim against Plaintiffs and NCB, seeking a declaration
that the Exchange Offer was legal, that the payments made by NCB
to Capitol were appropriate, and that Capitol and Reid had not
breached any fiduciary duty or abused control (the
3. On December 9, 2005 the parties held a meet and confer and
agreed to consider dismissing without prejudice the Complaint and
4. As a result of the parties' subsequent discussions, they
agree to the following: (1) Plaintiffs will dismiss without
prejudice the Complaint and (2) Capitol and Reid will dismiss
without prejudice the Counterclaim.
5. The parties' agreement to dismiss without prejudice the
Complaint and the Counterclaim is subject to the following
conditions: (1) if any party to this stipulation refiles a
pleading asserting any of the claims alleged in the Complaint or
the Counterclaim against any other party to this stipulation, the
claims will be filed in this Court if the Court has jurisdiction
over the claims and (2) the parties will seek to have the refiled
pleadings related to Rubke v. Capitol Bancorp, et al., No.
C-05-4800-PJH if that case is then pending before this Court. IT IS THEREFORE STIPULATED that the Complaint and the
Counterclaim are dismissed without prejudice with all parties to
bear their own costs and attorneys' fees, subject to the
conditions detailed above. DECLARATION PURSUANT TO GENERAL ORDER 45, § X.B
I, BRUCE A. ERICSON, hereby declare pursuant to General Order
45, § X.B, that I have obtained the concurrence in the filing of
this document from the other signatory listed below.
I declare under penalty of perjury that the foregoing
declaration is true and correct.
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