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County of San Mateo v. State Board of Equalization

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


March 19, 2009

COUNTY OF SAN MATEO, PLAINTIFF AND PETITIONER,
v.
STATE BOARD OF EQUALIZATION; CITY OF OAKLAND; UNITED AIRLINES; UNITED AVIATION FUELS; AND DOES 1-20, DEFENDANTS AND RESPONDENTS.

The opinion of the court was delivered by: Judge: Hon. Susan Illston

STIPULATION OF DISMISSAL WITHOUT PREJUDICE AND [PROPOSED] ORDER

IT IS HEREBY STIPULATED by and between Plaintiff County of San Mateo ("Plaintiff" or "County") and Defendants United Airlines and United Aviation Fuels (collectively "United") by and through their designated counsel that the above-captioned action be and is hereby dismissed without prejudice pursuant to Fed. R. Civ. P. 41(a)(1) as follows:

WHEREAS, on February 3, 2009 the Superior Court of California for the County of San Francisco issued a judgment in County of San Mateo v. State Board of Equalization, et al., No. 07-459514 (the "State Court Litigation"), dismissing that case, based on a failure to exhaust administrative remedies, without prejudice to the County refiling that case when the State Board of Equalization completes the administrative review triggered by the County's submission of a after the administrative review is completed; captioned action is dismissed without prejudice on the following terms: against United in any forum, state or federal, or bring any claim related to the subject of the litigation until the later of: Litigation is successful, sixty (60) days after a final judgment on the merits determining the validity of Regulation 1699(h) in the State Court Litigation. Or, in the event of an appeal of that subsequent judgment, sixty (60) days after the completion of any subsequent appellate proceedings; or

WHEREAS, the County intends to appeal that ruling; and

WHEREAS, if the appeal is unsuccessful, the County intends to refile a state court action

NOW, THEREFORE, THE PARTIES AGREE AND STIPULATE that the above-

1. Plaintiff County shall not refile this action (Case. No. C 06-3761 SI)

A. If the County's appeal of the existing judgment in the State Court

B. If the County chooses not to appeal the existing judgment in the State Court Litigation or the appeal is unsuccessful, sixty (60) days after a final judgment on the merits determining the validity of Regulation 1699(h) in any subsequent suit filed by the County against the State Board of Equalization. Or, in the event of an appeal of the final judgment on the merits in that subsequent action, sixty (60) days after the completion of any subsequent appellate proceedings.

2. Furthermore, the statutes of limitations for all claims brought by Plaintiff in this action are tolled from May 16, 2006 until the later date of sub-paragraph A or B of paragraph above.

3. Each party shall bear its own attorney's fees and costs incurred in the prosecution and defense of this action, as well as the negotiations relating to this stipulation.

4. Plaintiff will give United thirty (30) days advance notice before bringing any claim in any forum against United.

Pursuant To Stipulation, IT IS SO ORDERED.

The Court hereby ORDERS Case No. C 06-3761 SI Dismissed without Prejudice.

Hon. Susan Illston United States District Court Judge

GENERAL ORDER 45 ATTESTATION

I, James F. Basile, am the ECF user whose ID and password are being used to file this STIPULATION OF DISMISSAL WITHOUT PREJUDICE. In compliance with General Order 45, X.B., I hereby attest that David A. Silberman has concurred in this filing.

20090319

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