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Michael L. Potts, D.D.S., and the Dad American Academy of Implant Dentistry v. Brian Stiger

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


April 26, 2011

MICHAEL L. POTTS, D.D.S., AND THE DAD AMERICAN ACADEMY OF IMPLANT DENTISTRY,
PLAINTIFFS,
v.
BRIAN STIGER, IN HIS OFFICIAL CAPACITY AS DIRECTOR, CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: John A. Mendez U. S. District Judge

FRANK R. RECKER, ESQ (Pro Hac Vice) recker@ddslaw.com FRANK R. RECKER & ASSOCIATES, CO., L.P.A. 1850 San Marco Road, Suite A Marco Island, FL 34145-3014 Phone: 239.642.4704 ANN TAYLOR SCHWING, ESQ. (#91914) BEST BEST KRIEGER LLP 400 Capitol Mall, Suite 1650 Sacramento, CA 95814 Phone: 916.551.2098 MENNEMEIER, GLASSMAN & STROUD LLP KENNETH C. MENNEMEIER (SBN 113973) 980 9th Street, Suite 1700 Sacramento, CA 95814 Telephone: (916) 553-4000 E-Mail: kcm@mgslaw.com Attorneys for Plaintiffs KAMALA D. HARRIS, Attorney General of the State of California ARTHUR D. TAGGART Lead Supervising Deputy Attorney General JEFFREY M. PHILLIPS, State Bar No. 154990 Deputy Attorney General California Department of Justice 1300 I Street, Suite 125 Sacramento, CA 94244-2550 Telephone: (916) 324-6292 jeffrey.phillips@doj.ca.gov Attorneys for Defendants

STIPULATION AFFIXING AMOUNT OF COSTS AND FEES;

ORDER ON STIPULATION

The parties stipulate as follows:

RECITALS

A. On October 15, 2010, after three days of trial and the close of Defendants' case, the Court granted Plaintiffs' motion under Federal Rule of Civil Procedure 52(c) and ruled in Plaintiffs' favor on each of Plaintiffs' three claims.

B. On November 18, 2010, the Court entered final judgment (Doc. #235),

(1) declaring Section 651(h)(5)(A) unconstitutional both on its face and as applied to Plaintiffs,

(2) enjoining "Defendants, and all persons under the control or supervision of Defendants, from implementing, applying, or otherwise enforcing the provisions of Section 651(h)(5)(A)," and

(3) providing that the matter of attorney's fees will be handled by motion in accordance with Local Rule 293.

C. On December 2, 2010, Plaintiffs filed a "Bill of Costs" (Doc. #238), seeking $13,248.66 in costs, which amount was comprised of $9,012.90 in costs previously awarded by the Court (Doc. #123) as well as $4,235.76 in costs incurred since the Court's June 20, 2005 order awarding costs. Defendants did not oppose Plaintiffs' "Bill of Costs."

D. On January 5, 2011, Plaintiffs moved for $1,072,047 in attorney's fees and litigation expenses (Doc. #242), which amount was comprised of $315,240.01 in fees and expenses previously awarded by the Court (Doc. #123) as well as $756,806.99 in fees and expenses incurred since the Court's June 20, 2005 order awarding those fees and expenses.

E. On February 9, 2011, Defendants filed their opposition to Plaintiffs' attorney's fee motion (Doc. #250), arguing that plaintiffs' fee request should be reduced by approximately $112,000.

F. On February 16, 2011, Plaintiffs filed a reply brief in support of their attorney's fees motion (Doc. #253), in which Plaintiffs claimed an additional $7,105 in fees (fees incurred since January 5, 2011), bringing the total amount of the requested fees and expenses (but not including "costs" as addressed in Recital C) to $1,079,152.

G. After extensive negotiations, the parties have agreed to settle and resolve the issues concerning Plaintiffs' costs (Doc. #238) and Plaintiffs' Motion for Attorneys' Fees (Doc. #242); specifically, in exchange for Defendants' agreement to dismiss their appeal, Plaintiffs have agreed to accept fees and costs in an amount less than the aggregate amount sought in the aforementioned filings, and Defendants have agreed to fix the fees/costs at the agreed-upon amount.

Now, therefore, the parties enter into the following stipulation:

STIPULATION

The parties, by and through their respective counsel, stipulate and agree as follows:

1. In light of the fact Defendants did not challenge or contest Plaintiffs' "Bill of Costs" (Doc. #238), the Court may enter an order awarding Plaintiffs $13,248.66 in costs;

2. In light of the parties' compromise on Plaintiffs' motion for attorneys' fees and expenses, the Court may also enter an order granting Plaintiffs' pending motion for attorney's fees and expenses in the amount of $986,004.25;

3. In light of the fact that Defendants have previously paid Plaintiffs $324,252.91 in fees and costs pursuant to an earlier order of the Court (Doc. #123), the Court may enter an order applying that $324,252.91 as an offset against the aggregate amount of costs and fees to be awarded here upon the parties' stipulation ($999,252.91), such that, in addition to the $324,252.91 that Defendants have already paid Plaintiffs, Defendants must pay only an additional $675,000;

4. Defendants agree to pay that $675,000 within 150 days of the entry of an order on this Stipulation. Defendants shall pay that amount by check made payable to the "American Academy of Implant Dentistry." Defendants shall deliver that check to Kenneth C. Mennemeier, Mennemeier, Glassman & Stroud LLP, 980 9th Street, Suite 1700, Sacramento, CA 95814. Defendants agree that, if Defendants do not pay this amount within 150 days of the date on which the Court enters an order on this Stipulation, interest will accrue thereafter (i.e., after the 150th day following the date on which the Court enters an order on this Stipulation) on the $675,000 at the rate of 9% per annum until the date of payment; and

5. The Court shall retain full subject matter and personal jurisdiction to enforce the Judgment (Doc. #235) and the parties' agreement, as set forth in both this Stipulation and in the parties' separate written agreement.

ORDER

20110426

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