The opinion of the court was delivered by: Hon. James Larson U.S. Magistrate Judge
STIPULATION AND [PROPOSED] ORDER FOR LEAVE OF COURT TO FILE FIRST AMENDED COMPLAINT Pursuant to FRCP Rule 15 (a)(2)
Plaintiff ROLANDA TAYLOR filed her Complaint September 23, 2009, naming as defendants BARNES AND NOBLE BOOKSELLERS, INC.; STARBUCKS CORPORATION; CITY OF OAKLAND; and DOES 1-10, INCLUSIVE, based on information obtained from public records and Westlaw databases. Defendants BARNES AND NOBLE BOOKSELLERS, INC. and STARBUCKS CORPORATION were subsequently served with the Complaint, and on November 2, 2009, defense counsel for BARNES AND NOBLE BOOKSELLERS, INC. and STARBUCKS CORPORATION filed an Answer on their behalf. Defendant CITY OF OAKLAND was served with the Complaint but has yet to file an Answer to the Complaint.
In correspondence dated October 5, 2009, counsel for defendant STARBUCKS CORPORATION first advised plaintiff's counsel that STARBUCKS CORPORATION does not own, operate, or control the café that is the subject of this lawsuit (hereinafter the "Café"). Counsel further corresponded on this issue in written correspondence and via telephone.
In correspondence dated October 16, 2009, counsel for defendant CITY OF OAKLAND first advised plaintiff's counsel that the property that is the subject of plaintiff's Complaint falls within the jurisdiction of the Port of Oakland, which operates as an entity separate from defendant CITY OF OAKLAND. Counsel further corresponded on this issue in written correspondence and via telephone.
In a November 3, 2009 email thread to plaintiff's counsel's office, counsel for the Port of Oakland confirmed that the CITY OF OAKLAND ACTING BY AND THROUGH ITS BOARD OF PORT COMMISSIONERS is the governmental agency with title interest to the property at issue in this lawsuit.
In this November 3, 2009 email thread, counsel for the Port of Oakland also confirmed that the Port of Oakland has a lease for the subject property with an entity named "CEP-JLS I LLC." Counsel for the Port of Oakland subsequently forwarded plaintiff's counsel a copy of the lease for the subject property. The lease identifies "CITY OF OAKLAND ACTING BY AND THROUGH ITS BOARD OF PORT COMMISSIONERS " as the named party to the lease with CEP-JLS I LLC.
Upon information and belief, defendant BARNES AND NOBLE BOOKSELLERS, INC. has its lease for the retail space that is at issue in this case with CEP-JLS I LLC.
Defendant STARBUCKS CORPORATION has provided satisfactory evidence that it has nothing to do with the ownership or operation of the Café beyond its provision of products and that it has nothing to do with the maintenance or repair of the lift at issue in this lawsuit.
In order to facilitate resolution of plaintiff's claims, and in the interests of justice, plaintiff believes it is necessary that the following amendments are made to the Complaint: (1) all claims against defendant STARBUCKS CORPORATION be dismissed with prejudice; (2) the appropriate entity at issue in this case, CITY OF OAKLAND, A MUNICIPAL CORPORATION ACTING BY AND THROUGH ITS BOARD OF PORT COMMISSIONERS, be substituted for CITY OF OAKLAND as a defendant in this action; and (3) the master lease holder for the property at issue in this case, CEP-JLS I LLC be named as a defendant in this action.
Plaintiff has prepared a First Amended Complaint making the changes noted above. These changes are the only amendments to the Complaint, and the First Amended Complaint otherwise remains unchanged from the original.
Plaintiff seeks leave of the Court to amend the Complaint pursuant to FRCP 15 (a)(2), with the agreement of defendants BARNES AND NOBLE BOOKSELLERS, INC. and STARBUCKS CORPORATION, who have already answered as parties to this action, and also with the agreement of defendant CITY OF OAKLAND, who has not yet answered the Complaint in this matter.
Therefore, IT IS HEREBY STIPULATED by and between that plaintiff, BARNES AND NOBLE BOOKSELLERS, INC., STARBUCKS CORPORATION, and CITY OF OAKLAND, the only parties to have appeared in this action thus far, that plaintiff may seek leave of the court to file a First Amended Complaint, a copy of which is attached hereto as Exhibit A.
Furthermore, defendants STIPULATE that they will not, in future proceedings, allege that STARBUCKS CORPORATION is responsible for any of the actions alleged by plaintiff and/or claim that any of plaintiff's claims should be dismissed because ...