UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA -- SACRAMENTO DIVISION
May 25, 2011
DAWN KRUIZE, PLAINTIFF
SAFEWAY INC., ET AL.,
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
STIPULATION FOR AN ORDER DISMISSING CERTAIN CLAIMS WITH PREJUDICE, CLARIFYING PLAINTIFF'S REMAINING CLAIMS, AND REMANDING ACTION TO PLACER COUNTY SUPERIOR COURT.
Plaintiff DAWN KRUIZE ("Plaintiff") and Defendant SAFEWAY INC. ("Safeway") hereby stipulate that the Court may enter an Order:
1. Dismissing, with prejudice, Plaintiff's Sixth Claim for Relief [Breach of Employment Contract], her Seventh Claim for Relief [Breach of the Implied Covenant of Good Faith and Fair Dealing], her Eighth Claim for Relief [Negligent Hiring and Retention], and her Ninth Claim for Relief [Intentional Infliction of Emotional Distress]. The foregoing dismissal with prejudice of Plaintiff's Sixth, Seventh, Eighth and Ninth Claims is binding in this and in any other forum in which Plaintiff would or could seek to pursue such claims.
2. Confirming that Plaintiff's Fifth Claim for Relief for Wrongful Termination in Violation of Public Policy is premised entirely on the violation of public policy or public policies alleged in her First Claim for Relief [Age Discrimination in Violation of Government Code §§ 12900 et seq. and 12940 et Seq.], her Second Claim for Relief [Disability Discrimination in Violation of Government Code §§ 12900 et seq. and 12940 et seq.], her Third Claim for Relief [Gender Discrimination in Violation of Government Code §§ 12900 et Seq. and 12940 et Seq.], and her Fourth Claim for Relief [Retaliation in Violation of the California Family Rights Act], and on no other public policy, and that Plaintiff's Fifth Claim for Relief for Wrongful Termination in Violation of Public Policy is in no way based upon any alleged breach of any term of any collective bargaining agreement or other employment contract with Safeway, whether written, oral or implied in fact or in law. This stipulation shall be binding in any and all Courts or other forums in which this action may be heard.
3. Remanding the action to the Superior Court of the State of California, County of Placer, based upon the dismissal with prejudice of Plaintiff's Sixth, Seventh, Eighth and Ninth Claims for Relief, and the stipulation regarding the scope of her Fifth Claim for Relief set forth in Paragraph 2 above, which stipulations eliminate the claims upon which original subject matter jurisdiction in this Court (federal question jurisdiction; 28 U.S.C. § 1331) was based under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185 ("§ 301"). Accordingly, the parties hereby stipulate to the remand of this action and the un-dismissed claims asserted herein to the court in which it was originally filed, the Superior Court of the State of California for the County of Placer.
The parties believe there is good cause for the entry of an Order by the Court as stipulated to by the parties, in that the foregoing will reduce the number of claims to be addressed in discovery and in motion practice, and will eliminate a situation where the Court would be asked to continue to exercise its supplemental jurisdiction over the remaining claims pursuant to 28 U.S.C. § 1367, despite the removal of all federal claims from the action and the fact that this action is in its early stage.
Dated: May 24, 2011 DILLINGHAM & MURPHY, LLP WILLIAM F. MURPHY, ESQ. J. CROSS CREASON, ESQ. By: _/s/ J. Cross Creason Attorneys for Defendant Safeway Inc. Dated: May 24, 2011 BOWMAN & ASSOCIATES KARA KEISTER, ESQ. By: _/s/ Kara Keister Attorneys for Plaintiff Dawn Kruize
Based on the foregoing stipulation of the parties, the Court makes the following ORDER:
Plaintiff's Sixth Claim for Relief [Breach of Employment Contract]; Seventh Claim for Relief [Breach of the Implied Covenant of Good Faith and Fair Dealing]; Eighth Claim for Relief [Negligent Hiring and Retention]; and Ninth Claim for Relief [Intentional Infliction of Emotional Distress] are hereby dismissed WITH PREJUDICE.
The remainder of Plaintiff's action, including her Fifth Claim for Relief subject to the Stipulation set forth in Paragraph 2 above, is hereby remanded to the Superior Court of the State of California for the County of Placer. The parties shall bear their own attorneys fees and costs associated with the dismissal and remand.
IT IS SO ORDERED
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