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Pacific Bell Telephone Company v. United States of America

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 23, 2011

PACIFIC BELL TELEPHONE COMPANY,
PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: Morrison C. England, JR United States District Judge

BENJAMIN B. WAGNER United States Attorney LYNN TRINKA ERNCE JASON EHRLINSPIEL Assistant United States Attorneys 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 Attorneys for the United States

STIPULATION FOR DISMISSAL WITH PREJUDICE; ORDER THEREON

It is hereby stipulated by and between PACIFIC BELL TELEPHONE COMPANY ("PACIFIC BELL") and the UNITED STATES OF AMERICA ("UNITED STATES") as follows:

1. PACIFIC BELL does hereby agree to settle and compromise each and every claim of any kind, whether known or unknown, arising directly or indirectly from the acts or omissions that gave rise to the above-captioned action under the terms and conditions set forth in this Stipulation.

2. The UNITED STATES agrees to pay to PACIFIC BELL the sum of Ninety Thousand Dollars ($90,000.00), which sum shall be in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof, resulting, and to result, from the subject matter of this action, including any future claims for wrongful death, for which PACIFIC BELL and any parent, subsidiary, division, member, affiliated entities, or assigns, and each of them, now have or may hereafter acquire against the UNITED STATES, its agents, servants, and employees.

3. PACIFIC BELL and any parent, subsidiary, division, member, affiliated entities, or assigns, and any person or entity acting on behalf of any of the foregoing, agrees to accept the Ninety Thousand Dollars ($90,000.00) in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, including claims for wrongful death, arising from, and by reason of, any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof which they may have or hereafter acquire against the UNITED STATES, its agents, servants, and employees on account of the same subject matter that gave rise to the above-captioned action, including any future claim or lawsuit of any kind or type whatsoever, whether known or unknown, and whether for compensatory or exemplary damages. PACIFIC BELL and any parent, subsidiary, division, member, affiliated entities, or assigns, and any person or entity acting on behalf of any of the foregoing, further agree to reimburse, indemnify and hold harmless the UNITED STATES and its agents, servants and employees from and against any and all causes of action, claims, liens, rights, or subrogated or contribution interests incident to or resulting from further litigation or the prosecution of claims arising from the subject matter of this action against any third party or against the UNITED STATES, including claims for wrongful death.

4. PACIFIC BELL expressly waives any rights or benefits available pursuant to Section 1542 of the Civil Code of the State of California, which provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The parties understand and agree that this Stipulation shall act as a release of future claims that may arise from the subject matter of the above-captioned action, whether such claims are currently known, unknown, foreseen or unforeseen. The parties understand and acknowledge the significance and consequences of the specific waiver of section 1542 and hereby assume full responsibility for any injury, loss, damage or liability that may be incurred hereafter by reason of or related to the subject matter that gave rise to this action.

5. This Stipulation is not, is in no way intended to be, and should not be construed as, an admission of liability or fault on the part of the UNITED STATES, its agents, servants, or employees, and it is specifically denied that they are liable to PACIFIC BELL. This settlement is entered into by PACIFIC BELL and the UNITED STATES for the purpose of compromising disputed claims under the Federal Tort Claims Act and avoiding the expenses and risks of further litigation.

6. The parties agree that they will each bear their own costs, fees, and expenses; that any attorney's fees owed by PACIFIC BELL shall not exceed 25% of the settlement amount (28 U.S.C. § 2678) and will be paid out of the settlement amount and not in addition thereto; and that all outstanding or future bills and liens will be the sole responsibility of PACIFIC BELL.

7. Payment of the settlement amount from the UNITED STATES will be made by check drawn on the Treasury of the United States for Ninety Thousand Dollars ($90,000.00) and made payable to "PACIFIC BELL TELEPHONE COMPANY," Tax ID No. 94-0745535. The check will be mailed to PACIFIC BELL's attorney at the following address.

Gerard J. Donnellan

General Attorney AT&T Services, Inc. Legal Dept. 525 Market Street, Room 2008 San Francisco, CA 94105

8. The parties agree to execute and deliver such other and further documents as may be required to carry out the terms of this Stipulation.

9. Each person signing this Stipulation warrants and represents that he or she possesses full authority to bind the person[s] on whose behalf he or she is signing to the terms of the Stipulation.

10. Each person signing this Stipulation warrants and represents that no promises, inducements, or other agreements not expressly contained herein have been made; that this Stipulation contains the entire agreement between the parties; and that the terms of this Stipulation are contractual and not mere recitals. This Stipulation may not be altered, amended, modified, or otherwise changed in any respect, except by a writing duly executed by the party to be charged. All prior oral understandings, agreements, and writings are superseded by this Stipulation and are of no force or effect.

11. Each person executing this Stipulation represents that he or she has read and understands its contents; that he or she executes this Stipulation voluntarily; that he or she has not been influenced by any person acting on behalf of any party.

12. This Stipulation may be executed in counterparts. All such counterparts and signature pages, together, shall be deemed to be one document.

13. Upon approval by the Court as provided below, PACIFIC BELL's action against the UNITED STATES is hereby DISMISSED WITH PREJUDICE in its entirety and the Clerk of the Court is requested to enter this dismissal and release in the official docket and to close the case.

14. Notwithstanding the entry of a dismissal herein, the parties agree that that the Honorable Morrison C. England, Jr. shall retain jurisdiction to enforce the terms of this compromise settlement.

ORDER

Pursuant to the foregoing stipulation, this matter is dismissed in its entirety, with prejudice. The Clerk of Court is hereby directed to close the file.

20110623

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