UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 7, 2011
CALIFORNIA SPORTFISHING PROTECTION ALLIANCE, A NON-PROFIT CORPORATION,
USA WASTE OF CALIFORNIA, INC. A DELAWARE CORPORATION, AND MIKE DONOHUE, AN INDIVIDUAL,
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ANDREW L. PACKARD (Bar No. 168690) ERIK M. ROPER (Bar No. 259756) 2 HALLIE B. ALBERT (Bar No. 258737) Law Offices of Andrew L. Packard 3 100 Petaluma Blvd. N., Suite 301 Petaluma, CA 94952 4 Tel: (707) 763-7227 Fax: (707) 763-9227 5 E-mail: Andrew@packardlawoffices.com 6 ROBERT J. TUERCK (Bar No. 255741) 7 Jackson & Tuerck P. O. Box 148 8 429 W. Main Street, Suite C Quincy, CA 95971 9 Tel: (530) 283-0406 E-mail: firstname.lastname@example.org Attorneys for Plaintiff CALIFORNIA SPORTFISHING PROTECTION ALLIANCE
STIPULATION TO DISMISS PLAINTIFF'S CLAIMS WITH PREJUDICE; ORDER GRANTING DISMISSAL WITH PREJUDICE [FRCP 41(a)(2)]
(Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 to 1387; and, California Health & Safety Code § 25249.5 et seq.)
WHEREAS, on or about March 4, 2010, Plaintiff California Sportfishing Protection Alliance ("CSPA") provided Defendants USA WASTE OF CALIFORNIA, INC., a Delaware corporation, and MIKE DONAHUE, an individual, ("Defendants") with a Notice of Violations and Intent to File Suit ("CWA Notice") under Clean Water Act §505, 33 U.S.C. §1365.
WHEREAS, on May 4, 2010, CSPA filed its Complaint against Defendants in this Court, California Sportfishing Protection Alliance v. Cook Concrete Products, Inc., et al., (USDC, E.D. Cal., Case No. 2:10-cv-01083-JAM-DAD) and said Complaint incorporates by 4 reference all of the allegations contained in CSPA's CWA Notice;
WHEREAS, on or about September 10, 2010, Plaintiff provided notice of USA Waste's alleged violations of California Health & Safety Code § 25249.5 et seq. (referred to as "Proposition 65") ("Proposition 65 Notice Letter"), and of its intention to file suit against USA Waste to the Proposition 65 Enforcement Reporting section of the office of the California
Attorney General ("California Attorney General"); the District Attorney of each California county containing sources of drinking water potentially impacted by USA Waste's violations of Proposition 65 as described in the Proposition 65 Notice Letter; and, to USA Waste, as required by California Health & Safety Code Section 25249.5 et seq.;
WHEREAS, the Parties have stipulated to leave for Plaintiff to file a First Amended Complaint upon the expiration of the September 10, 2010 Proposition 65 Notice Letter;
WHEREAS, CSPA and Defendants, through their authorized representatives and without either adjudication of CSPA's claims or admission by Defendant of any alleged violation or other wrongdoing, have chosen to resolve in full by way of settlement the allegations of CSPA as set forth in the CWA Notice and Complaint, thereby avoiding the costs and uncertainties of further litigation. A copy of the agreement ("Settlement Agreement") entered into by and between CSPA and Defendants is attached hereto as Exhibit A and incorporated by reference.
WHEREAS, the parties submitted the Settlement Agreement via certified mail, return receipt requested, to the U.S. EPA and the U.S. Department of Justice and the 45-day review period set forth at 40 C.F.R. § 135.5 has been completed without objection by the agencies.
NOW THEREFORE, IT IS HEREBY STIPULATED and agreed to by and between the parties that CSPA's claims, as set forth in the Notice and Complaint, be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). The parties respectfully 2 request an order from this Court dismissing such claims with prejudice. In accordance with 3 paragraphs 2 and 19 of the Settlement Agreement, the parties also request that this Court retain 4 and have jurisdiction over the Parties with respect to disputes arising under the Settlement Agreement.
SO STIPULATED AND ORDERED.
Since the parties having stipulated and agreed,
IT IS HEREBY ORDERED that Plaintiff California Sportfishing Protection Alliance's claims against USA WASTE OF CALIFORNIA, INC., a Delaware corporation, and MIKE DONAHUE, an individual, as set forth in the Notice and Complaint filed in Case No. 2: 10-6 CV-01096-GEB-KJN, are hereby dismissed with prejudice.
IT IS FURTHER ORDERED that the Court shall retain and have jurisdiction over the Parties with respect to disputes arising under the Consent Agreement attached to the parties' Stipulation to Dismiss as Exhibit A, filed on December 28, 2010.
IT IS SO ORDERED.
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