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Daren Heatherly and Irma Ramirez, Each An Individual v. La Paloma Restaurant; Hang Lim and Kim Shu Lim

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


August 15, 2011

DAREN HEATHERLY AND IRMA RAMIREZ, EACH AN INDIVIDUAL, PLAINTIFFS,
v.
LA PALOMA RESTAURANT; HANG LIM AND KIM SHU LIM, TRUSTEES OF THE HANG AND KIM SHU LIM 1992 FAMILY TRUST,
DEFENDANTS.

The opinion of the court was delivered by: Honorable Maria-Elena James United States Chief Magistrate Judge

Renee Welze Livingston (SBN 124280) Jason G. Gong (SBN 181298) LIVINGSTON LAW FIRM A Professional Corporation 1600 South Main Street, Suite 280 Walnut Creek, CA 94596 Tel: (925) 952-9880 Fax: (925) 952-9881 Attorneys for Defendant KAM SHU LIM, TRUSTEE OF THE HANG and KAM SHU LIM FAMILY TRUST

STIPULATION AND [PROPOSED] ORDER TO SET ASIDE CLERK'S ENTRY OF DEFAULT AND DISMISSAL OF DEFENDANT HANG LIM Complaint Filed: February 22, 2011 Trial Date: None Plaintiffs DAREN HEATHERLY and IRMA RAMIREZ ("plaintiffs"), each an 20 individual, and Defendant KAM SHU LIM, erroneously sued as KIM SHU LIM in her capacity 21 as TRUSTEE OF THE HANG and KIM SHU LIM 1992 FAMILY TRUST ("defendant"), by 22 and through their respective counsel of record, hereby request and make the following stipulation:

1. Whereas, plaintiffs filed the above-captioned action against the named defendants on February 22, 2011;

2. Whereas, plaintiffs having not received a responsive pleading from defendants Hang Lim and Kim Shu Lim after attempting to notify defendant that a responsive pleading was 28 due;

3. Whereas, plaintiffs filed a request for entry of default against defendants Hang Lim and Kim Shu Lim on July 13, 2011; 3

4. Whereas, a Clerk of the Court entered default against defendants Hang Lim and

Kim Shu Lim, Trustee of the Hang and Kim Shu Lim 1992 Family Trust on July 29, 2011;

5. Whereas, counsel for defendant Kam Shu Lim advised plaintiffs' counsel on July 29, 2011 that defendant had only recently retained him in this matter;

6. Whereas, counsel for defendant Kam Shu Lim advised plaintiffs' counsel on July 29, 2011 that he will file a responsive pleading to plaintiffs' complaint once the Court has set 9 aside the default; 10

7. Whereas, counsel for defendant Kam Shu Lim has advised plaintiffs' counsel that

11 defendant Hang Lim is deceased and therefore not a proper party to this action;

IT IS SO STIPULATED:

1. That the Court may set aside the Clerk's July 29, 2011 Entry of Default against defendants Hang Lim and Kim Shu Lim, Trustee of the Hang and Kim Shu Lim 1992 Family Trust;

2. That pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), defendant Hang Lim is dismissed without prejudice from plaintiffs' action;

3. That defendant Kam Shu Lim shall file a responsive pleading to plaintiffs' complaint on or before August 22, 2011;

4. That the parties shall bear their own attorney fees and costs.

Respectfully submitted,

ORDER

IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 55(c), and for good cause shown, the Clerk's July 29, 2011 Entry of Default against Defendants HANG LIM and KIM SHU LIM, TRUSTEES OF THE HANG and KIM SHU LIM 1992 FAMILY TRUST is hereby 12 set aside.

IT IS HEREBY FURTHER ORDERED that defendant KAM SHU LIM, an individual sued herein as KIM SHU LIM, shall file a responsive pleading to plaintiffs' complaint on or before August 22, 2011.

IT IS HEREBY FURTHER ORDERED that defendant HANG LIM is dismissed without prejudice from plaintiffs' action.

IT IS HEREBY FURTHER ORDERED that the parties shall bear their own attorney fees and costs in connection to the preparation and filing of this stipulation.

DATED: August _____, 2011

20110815

© 1992-2011 VersusLaw Inc.



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