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Northern California River Watch v. Oakland Maritime Support Services, Inc.

United States District Court, Ninth Circuit

October 24, 2013

NORTHERN CALIFORNIA RIVER WATCH, a non-profit corporation; TEAMSTERS LOCAL 70, a labor organization; and EAST BAY ALLIANCE FOR SUSTAINABLE ECONOMY, a non-profit organization, Plaintiffs,
v.
OAKLAND MARITIME SUPPORT SERVICES, INC., a corporation; WILLIAM ABOUDI, an individual; and JORGE GONZALEZ RIVERA d.b.a. CHRISTIAN BROTHERS TRUCK SERVICES, an individual; and REDEVELOPMENT AGENCY OF THE CITY OF OAKLAND, a local public agency; Defendants.

Michael R. Lozeau (State Bar No. 142893), Richard T. Drury (State Bar No. 163559), Douglas J. Chermak (State Bar No. 233382), LOZEAU DRURY LLP, Oakland, CA, Attorneys for Plaintiffs, NORTHERN CALIFORNIA RIVER WATCH, TEAMSTERS LOCAL 70, and EAST BAY ALLIANCE FOR A SUSTAINABLE ECONOMY.

MEREDITH E. BROWN, Attorney for Defendants, OAKLAND MARITIME SUPPORT SERVICES, INC. and WILLIAM ABOUDI.

ROBERT DOTY, Attorney for Defendants CITY OF OAKLAND and REDEVELOPMENT AGENCY OF THE CITY OF OAKLAND.

STIPULATION AND CONSENT TO AMEND COMPLAINT TO ADD CITY OF OAKLAND AS A DEFENDANT; ORDER

CLAUDIA WILKEN, Chief District Judge.

The parties hereby stipulate as follows and consent, pursuant to Federal Rules of Civil Procedure, Rule 15(a)(2), to amend the First Amended Complaint and, as needed, other operative pleadings to re-name the City of Oakland as a Defendant in this action in order to facilitate the Parties' completion of the tentative settlement reached on July 22, 2013.

WHEREAS, on November 2, 2010, Plaintiffs filed a First Amended Complaint that included the City of Oakland as a Defendant in this action;

WHEREAS, at that time, the City of Oakland Redevelopment Agency, not the City of Oakland, was the sole owner of the land leased by Defendant Oakland Maritime Support Services, Inc.;

WHEREAS, accordingly, on February 23, 2011, after confirmation of that underlying fact, Plaintiffs voluntary dismissed the City of Oakland without prejudice;

WHEREAS, effective February 1, 2012, Oakland's Redevelopment Agency ceased to exist, by operation of statute, and had its non-housing assets and liabilities transferred, by statute, to the Oakland Redevelopment Successor Agency ("ORSA");

WHEREAS, as of early 2012, the City of Oakland became the owner of the real property on which the OMSS facility is located;

WHEREAS, on July 22, 2013, the parties reached a settlement in principle of this matter, which was subject to several contingencies, and have been diligently proceeding since then to finalize a settlement agreement and resolve the contingencies identified in the tentative settlement;

WHEREAS, in late August 2013, the City and ORSA received written confirmation from the California Department of Finance and the State Controller's Office that the State of California would not exercise its so-called clawback authority to divest the City of title to the real property where the OMSS facility was located;

WHEREAS, with that contingency resolved, and in order to facilitate implementation of the tentative settlement by including the City, as the current landowner, as a signatory to the settlement agreement, the parties wish to amend the First Amended Complaint, and any other operative pleadings that may need to be similarly amended, so that the City is a party to this action;

WHEREAS, the First Amended Complaint already includes all necessary allegations addressing the City as a party to this action and the parties therefore do not believe there is any current, substantial need to submit a revised complaint;

WHEREAS, the parties also wish to avoid any delay and expense that might be associated with motion practice associated with a conventional amendment to the First Amended Complaint, or with amending other operative pleadings;

WHEREAS, the Parties agree that adding the City as a Defendant has not been unduly delayed (the confirmation of the City's status as title holder to the site in dispute coming in late August, 2013), that this stipulated amendment is a good faith effort to facilitate finalization of the parties' settlement, and that this stipulated amendment will not prejudice any of the parties;

WHEREAS, the City hereby acknowledges service of the First Amended Complaint and adopts as its own the answer filed by the Redevelopment Agency in April 25, 2011, without prejudice to its right to seek an amendment to that answer should the tentative settlement not resolve this action; and

WHEREAS, the City's counsel participated in the negotiations leading up to the Parties' agreement in principle reached on July 22, 2013, the City Council thereafter approved the term sheet prepared on July 22, 2013, and the City is committed to working in good faith with the other parties to promptly finalize the settlement of this action.

NOW, THEREFORE, the parties hereby stipulate and consent pursuant to Federal Rules of Civil Procedure, Rule 15(a)(2), to amend the First Amended Complaint to add the City of Oakland as a party Defendant and respectfully request the Court to enter an order confirming that amendment.

PURSUANT TO STIPULATION AND THE CONSENT OF ALL PARTIES APPEARING IN THIS ACTION, it is hereby ordered pursuant to Federal Rules of Civil Procedure, Rule 15(a)(2), that the First Amended Complaint is amended to add the City of Oakland as a party Defendant.

IT IS SO ORDERED.


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