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Dunne v. Smith

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 1, 2010

WILLIAM D. DUNNE, PLAINTIFF,
v.
D. SMITH, WARDEN, B. AVALOS, ASSOCIATE WARDEN, AND J. KARGE, CAPTAIN, DEFENDANTS.

The opinion of the court was delivered by: Honorable Larry M. Boyle United States Magistrate Judge

REPORT AND RECOMMENDATION

REPORT

On September 23, 2010, the parties participated in a telephonic settlement conference supervised by undersigned Magistrate Judge. Plaintiff participated pro se. All defendants participated and were represented by counsel. All parties participated in good faith, but agreed that the issue of whether or not Plaintiff has any viable claim against the currently named defendants is an issue which requires resolution before settlement may be fruitfully explored.

As a result, Plaintiff and Defendants agreed to request the trial judge to extend the time within which and to grant leave to file certain motions which pertain to the issues.*fn1

Plaintiff agreed that Defendants may file a motion for summary judgment on the grounds that Plaintiff has not sued the correct defendants. Defendants agreed that Plaintiff may file any cross motions as well, which may include a motion to amend the Complaint in order to name the correct parties to this lawsuit.

The parties also expressly requested that this Magistrate Judge document the parties' discussions in an "order." Because this matter was referred to this Magistrate Judge for settlement purposes only, he is without authority to grant the parties leave to allow for the additional filings. Instead, this Magistrate Judge submits this Report and Recommendation for consideration and final determination by the presiding judge, Honorable B. Lynn Winmill.

RECOMMENDATION

For the foregoing reasons, IT IS THEREFORE RECOMMENDED that the parties be granted leave to file additional dispositive motions and/or motions for leave to amend the pleadings and to join parties in order to resolve the issue of the proper party defendants in this case.


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