The opinion of the court was delivered by: Hon. Maxine M. Chesney District Court Judge
Trial Date: January 26, 2009
JOINT STIPULATION TO DISMISS WITHOUT PREJUDICE CERTAIN OF PLAINTIFF'S CLAIMS AND TO AMEND FIRST AMENDED COMPLAINT ACCORDINGLY; [PROPOSED] ORDER [FRCP 41(a)(2) and 15(a]
Plaintiff Joe Esmond ("Plaintiff") and Defendant Cargill, Inc. ("Cargill"), by and through their respective counsel of record, hereby stipulate that the following claims in Plaintiff's First Amended Complaint be dismissed without prejudice and that, by force of this stipulation and Order, Mr. Esmond's First Amended Complaint will be amended as follows:
1. Plaintiff's Sixth Cause of Action for age discrimination is dismissed without prejudice;
2. Plaintiff's Seventh Cause of Action for breach of contract is dismissed without prejudice;
3. Plaintiff's Eighth Cause of Action for breach of the covenant of good faith and fair dealing is limited, without prejudice, to Cargill's wage and hour practices, including the alleged withholding of Plaintiff's severance pay and the related release; and
4. Plaintiff's Ninth Cause of Action for unfair business practices will, without prejudice, no longer incorporate Plaintiff's Sixth and Seventh Cause of Action or the claims therein, nor will it incorporate Plaintiff's Eighth Cause of Action or the claims therein, except to the extent it concerns Cargill's wage and hour practices, including the alleged withholding of Plaintiff's severance pay and the related release. Therefore, Plaintiff's First Amended Complaint, filed in Alameda County Superior Court on August 27, 2007 and removed to this court by Cargill on September 28, 2007 shall be deemed so amended by this Order. Because this amendment limits existing claims but does not add any new claims, Cargill's currently operative Answer, filed in Alameda County Superior Court on September 27, 2007, shall continue to be its currently operative Answer.
DATED: July 18, 2008 NIXON PEABODY LLP
PAUL R. LYND Attorneys for Defendant CARGILL INC.
LAW OFFICES OF RICHARD J. VAZNAUGH
RICHARD J. VAZNAUGH Attorney for Plaintiff JOE ESMOND
[PROPOSED] ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED. ,and the action shall proceed on the First ...