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Leon S. Pence v. At&T Pension Benefit Plan

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 8, 2012

LEON S. PENCE, PLAINTIFF,
v.
AT&T PENSION BENEFIT PLAN; PACIFIC TELESIS GROUP COMPREHENSIVE DISABILITY BENEFITS PLAN, DEFENDANTS.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

STIPULATION AND ORDER TO DISMISS IMPROPERLY NAMED DEFENDANT AND TO ALLOW PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT Complaint filed: July 10, 2012

Pursuant to Rules 144(a) and 220 of the Local Rules of the United States District Court for the Eastern District of California and Rule 6(b) of the Federal Rule of Civil 3 Procedure, Plaintiff LEON S. PENCE ("Plaintiff") and Defendants AT&T PENSION BENEFIT 4 PLAN and PACIFIC TELESIS GROUP COMPREHENSIVE DISABILITY BENEFITS PLAN, 5 which is Specially Appearing for purposes of this Stipulation, (collectively, "Defendants"), by 6 and through their undersigned attorneys, hereby stipulate and agree as follows: 7 8

WHEREAS, pursuant to Rule 12 of the Federal Rules of Civil Procedure, Defendants are currently required to respond by November 13, 2012 to Plaintiff's Complaint (the "Complaint"):

WHEREAS, a party is permitted to amend its pleadings pursuant to Rule 15 of the Federal Rules of Civil Procedure;

WHEREAS, a party is required to retype and file every pleading which has been amended so that it is complete in itself without reference to the prior or superseded pleading unless prior approval to the contrary is obtained from the Court pursuant to Rule 220 of the Local Rules of the United States District Court for the Eastern District of California;

WHEREAS, Defendants have not yet filed their first responsive pleadings to the Complaint;

WHEREAS, Defendants assert that the Complaint improperly names Pacific Telesis Group Comprehensive Disability Benefits Plan as a defendant;

WHEREAS, the parties have met and conferred regarding the identity of an 2 appropriate defendant and the possibility of an amendment to the Complaint to name the 3 appropriate party-defendant; 4 5

WHEREAS, in order to avoid motion practice and to conserve the resources of 6 the parties and the Court, Defendants proposed to Plaintiff that (1) Plaintiff dismiss with 7 prejudice improperly named Defendant Pacific Telesis Group Comprehensive Disability 8

Benefits Plan; (2) Plaintiff amend his Complaint to name AT&T Umbrella Benefit Plan No. 1 9 as a defendant; and (3) Miller Law Group will accept service on behalf of AT&T Umbrella Benefit Plan No. 1;

WHEREAS, Plaintiff agreed to Defendants' proposal;

WHEREAS, Plaintiff wishes to (1) dismiss with prejudice Defendant Pacific Telesis Group Comprehensive Disability Benefits Plan; and (2) amend his Complaint to name AT&T Umbrella Benefit Plan No. 1 as a defendant;

WHEREAS, the parties have STIPULATED that Plaintiff shall (1) dismiss with prejudice Defendant Pacific Telesis Group Comprehensive Disability Benefits Plan; and (2) amend his Complaint to name AT&T Umbrella Benefit Plan No. 1 as a defendant;

WHEREAS, the parties have STIPULATED to extend the time for Defendant AT&T Pension Benefit Plan to file its first responsive pleading until fourteen (14) days from the date on which Plaintiff serves Defendant AT&T Pension Benefit Plan with notice of filing his First Amended Complaint;

WHEREAS, this Stipulation does not in any way constitute a responsive pleading by any defendant;

NOW, THEREFORE, the parties have STIPULATED that Plaintiff hereby (1) 2 dismisses with prejudice Defendant Pacific Telesis Group Comprehensive Disability 3 Benefits Plan; (2) amends his Complaint to name AT&T Umbrella Benefit Plan No. 1 as a 4 defendant pursuant to Rule 15 of the Federal Rules of Civil Procedure; and (3) will retype 5 and file a First Amended Complaint to reflect and incorporate the agreement of the parties 6 stated herein so that it is complete in itself without reference to the original Complaint 7 pursuant to Rule 220 of the Local Rules of the United States District Court for the Eastern 8 District of California; and (4) that Defendant AT&T Pension Benefit Plan shall be permitted 9 to file its first responsive pleading, as required by Rule 12 of the Federal Rules of Civil Procedure, fourteen (14) days after the date on which Plaintiff serves Defendant AT&T Pension Benefit Plan with notice of filing his First Amended Complaint, as permitted by Rule 144 of the Local Rules of the United States District Court for the Eastern District of California.

IT IS SO STIPULATED.

Dated: November 8, 2012 LAW OFFICE OF RICHARD JOHNSTON By: /s/ Richard Johnston Richard Johnston Attorneys for Plaintiff LEON S. PENCE Dated: November 8, 2012 MILLER LAW GROUP A Professional Corporation By: /s/ Katherine L. Kettler Katherine L. Kettler Attorneys for Defendants AT&T PENSION BENEFIT PLAN and PACIFIC TELESIS GROUP COMPREHENSIVE DISABILITY BENEFITS PLAN (Specially Appearing)

ORDER

After full consideration of the stipulation of counsel and good cause appearing, 4 the Court HEREBY ORDERS that: 5 6

1. Defendant Pacific Telesis Group Comprehensive Disability Benefits Plan is hereby dismissed from this action with prejudice; 8 9

2. Plaintiff has fourteen (14) days from the date of this Order to file the First Amended Complaint; and

3. Defendant AT&T Pension Benefit Plan's deadline to file its first responsive pleading is extended so it is no longer due on November 13, 2012 and is now due fourteen (14) days after the date on which Plaintiff serves Defendant AT&T Pension Benefit Plan with notice of filing his First Amended Complaint.

IT IS SO ORDERED.

20121108

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