UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION
March 23, 2012
CMLS MANAGEMENT, INC, MARGARETT WILKINS, AND MICHAEL L. SCHULTE PLAINTIFFS,
FRESNO COUNTY SUPERIOR COURT DONALD FRANSON, JUDGE, AND MARK SNAUFFER, JUDGE
MICHAEL L. SCHULTE - BAR NO. 182284 LOW PRICE LEGAL ADVICE 6608 N Wembley Dr. Fresno, California 93711 Telephone: (559) 696-2312 Facsimile: (888) 855-6631 Attorney for Margarett Wilkins, CMLS Management, Inc., and In Propia Persona
STIPULATION & ORDER RE: PARTIAL DISMISSAL OF CAUSE OF ACTION [Rule 41(a)(1)(ii)]
Plaintiffs and Defendants herein submit this Stipulation and Order re: Partial Dismissal of Cause of Action pursuant to Federal Rules of Civil Procedure, Rule 41(a)(1)(ii), stipulating as follows:
1. On October 20, 2011, Plaintiffs filed a complaint pursuant to 42 USC §1983 in the California Eastern District Federal Court (the "Federal Complaint") against Defendants Fresno Superior Court, Donald Franson, Judge, and Mark Snauffer, Judge (the "Defendants") (Doc. 2.).
2. The Federal Complaint included a cause of action for "[d]amages," Federal Complaint, line 13, column 2, page 1. More specifically, Plaintiff Schulte requested that the Court "find Schulte entitled to compensatory damages against both Mark Wood Snauffer and the Fresno County Superior Court for the damage to Schulte's reputation and conversion of Schulte's funds. ." Ibid, Paragraph 72.
3. On February 14, 2012, prior to any appearance by Defendants, Magistrate Judge Oberto issued a seven-page Order to Show Cause Why Complaint Should Not be Dismissed on the basis' of failure to serve complaint and lack of subject matter jurisdiction. (Doc. 7.).
4. On February 22, 2012, Plaintiff filed a Response to Order to Show Cause providing proof of service, and argument why the entirety of the Complaint should not be dismissed based upon the one cause of action for damages. (Doc. 11). Plaintiff also filed a notice declining to proceed with Magistrate Judge Oberto. (Doc. 12).
5. On February 28, 2012, the parties executed and filed a Stipulation to extend the time for Defendants to Respond. (Doc. 13).
6. On March 1, 2012, Magistrate Judge Oberto issued an order setting the Order to Show Cause in abeyance, and ordering Defendants to respond to the Complaint by March 30, 2012. (Doc. 14.).
7. On or about March 14, 2012, Plaintiff offered to Defendant to dismiss the portion of the Complaint which requested compensatory damages and/or sought personal liability against any Defendant. Such offer was accepted by Defendant.
8. Generally, any allegation or claim which purports, or could be interpreted, to seek damages or personal liability against any Defendant are hereby dismissed.
9. Specifically, the case heading shall be changed from "Complaint for (1) Damages; & (2) Declaratory Relief" to "Complaint for Declaratory Relief."
10. Further, Paragraph 72 of the Federal Complaint, inasmuch as it does contain a claim for damages and personal liability against Defendants, is hereby dismissed by Plaintiff.
IT IS SO STIPULATED.
Based upon the foregoing, the Court ORDERS:
1. The request to dismiss, generally, any allegation or claim which purports, or could be interpreted, to seek damages or personal liability against any Defendant, is GRANTED.
2. The request to change the case heading from "Complaint for (1) Damages; & (2) Declaratory Relief" to "Complaint for Declaratory Relief," is GRANTED.
3. The request to dismiss Paragraph 72 of the Federal Complaint, inasmuch as it does contain a claim for damages and personal liability against Defendants, is GRANTED.
IT IS SO ORDERED.
CHIEF UNITED STATES DISTRICT JUDGE
© 1992-2012 VersusLaw Inc.