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Lemire v. Schwarzenegger

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION


November 25, 2009

SHERIE LEMIRE INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF ROBERT ST. JOVITE; GERARD CHARLES ST. JOVITE AND NICOLE ST. JOVITE PLAINTIFFS,
v.
ARNOLD SCHWARZENEGGER, ET AL. DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

STIPULATION AND ORDER TO FILE FOURTH AMENDED COMPLAINT

Pursuant to Local Rule 83-143 the parties stipulate as follows: Pursuant to Stipulation, Plaintiffs amended their complaint on January 1, 2009. Since that time, Plaintiffs have served all those Defendants they have named except Defendants Thor, Hill, and Harris. On or about October 21, 2009, the parties stipulated to allow Plaintiffs to file the Third Amended Complaint which did not seek to add any new defendants, merely to clarify the alleged involvement of the already named defendants. The Court so ordered, and Plaintiffs filed the Third Amended Complaint on October 27, 2009. The Court ordered Defendants to respond to the amended complaint by November 26, 2009.

In a meet and confer discussion with defense counsel, it became apparent that Plaintiff had, through computer and operator error, inadvertently and mistakenly e-filed the wrong complaint, which added parties not intended to be added and deleted others. The parties therefore stipulate to the filing of the attached Fourth Amended Complaint to correct these errors.

Concomitant with this filing, the parties agree to the dismissal of Defendants Haviland, Cate, Hill, Harris, Thor, Soliz and LaBonte and all allegations and claims against them. The parties further agree and stipulate that these Defendants will seek no costs or attorney's fees and that no costs or fees will be awarded.

The proposed Fourth Amended Complaint re-inserts the erroneously removed Defendant then-Warden D. K. Sisto as a defendant, who had already appeared in this action, and defense counsel agrees to continue to accept service on his behalf.

Accordingly, the parties agree to allow Plaintiffs to file the attached Fourth Amended Complaint in order to properly clarify the parties and remedy the errors.

The parties further agree that Defendants will be excused from responding to the Third Amended Complaint, and Defendants will respond to the Fourth Amended Complaint within the time provided under Federal Rule of Civil Procedure 15.

IT IS SO STIPULATED.

ORDER

Plaintiffs are hereby allowed to file the Fourth Amended Complaint and that amended complaint must be filed no later than three days from the date of this order. Defendants are excused from responding to the Third Amended Complaint and shall file their response to the Fourth Amended Complaint within the time specified under Federal Rule of Civil Procedure 15.

Defendants Haviland, Cate, Hill, Harris, Thor, Soliz and LaBonte are hereby dismissed with prejudice, and each party shall bear its own costs and fees.

IT IS SO ORDERED.

20091125

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