Opinion
KAREN ASPLUND VELEZ, ESQ., MARK P. VELEZ, ESQ., KELLEN CROWE, ESQ., THE VELEZ LAW FIRM., Rocklin, California. Attorneys for Plaintiffs DARWIN CROSBY, ET AL.
ROBERT L. ZALETEL, ESQ., ANGELA J. RAFOTH, ESQ., LITTLER MENDELSON, P.C., San Francisco, California.
TARUN MEHTA, ESQ., LITTLER MENDELSON, P.C., Walnut Creek, California. Attorneys for Defendant SAVE MART SUPERMARKETS.
STIPULATION AND ORDER GRANTING PLAINTIFF CROSBY LEAVE TO AMEND RESPONSES TO REQUEST FOR ADMISSION
GARLAND E. BURREEL, Jr., District Judge.
TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
WHEREAS, on December 5, 2014, Defendant SAVE MART SUPERMARKETS ("Defendant") served Plaintiff Darwin Crosby with Request for Admission, Set One.
WHEREAS, on January 19, 2015, Plaintiff Crosby served his verified response.
WHEREAS, on February 9, 2015, Defendant removed the case to this Court asserting federal question subject matter jurisdiction based on Plaintiff Crosby's admissions that he was pursuing a claim under the federal Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.
WHEREAS, on February 10, 2015, Plaintiffs' counsel met and conferred with Defendant's counsel and asserted that Plaintiff Crosby's response to Defendant's Request for Admission, Set One was erroneous.
WHEREAS, on February 16, 2015, Plaintiff Crosby submitted a proposed amended response to Defendant's Request for Admission, Set One, a copy of which is attached as Exhibit A. The proposed amendment changed Plaintiff Crosby's response to admit that he did not claim any violations of the FMLA.
WHEREAS Plaintiff Crosby's proposed amended response to Request for Admission, Set One, would remove Plaintiff Crosby's only claim brought under federal law from the case.
WHEREAS, the Parties stipulate to an order allowing the amendments of Plaintiff Crosby's admissions attached as Exhibit A pursuant to Federal Rule of Civil Procedure 36, subdivision (b).
WHEREAS, the Parties disagree as to whether the Court should exercise its discretion to retain jurisdiction over this case. Plaintiffs assert the case should be remanded, and Defendant asserts the Court should retain jurisdiction. Nishimoto v. Federman-Bachrach & Associates, 903 F.2d 709, 715 (9th Cir. 1990).
WHEREAS, this stipulation and proposed order is without prejudice to either Parties' position with respect to Plaintiffs' anticipated remand motion to be filed if the Court grants the order requested.
So stipulated:
[PROPOSED] ORDER
Pursuant to the stipulation of the Parties, Plaintiff DARWIN CROSBY is hereby granted leave to amend his response to Defendant SAVE MART SUPERMARKETS' Request for Admission, Set One as set forth in Exhibit A to this stipulation and proposed order.
Exhibit A
Pursuant to Code of Civil Procedure Section 2033.210 et, seq., Plaintiff DARWIN CROSBY hereby amends his responses to Defendant SAVE MART SUPERMARKETS' Requests for Admission Set One, as follows:
Responding party has not completed investigation of the facts relating to the case, has not completed discovery in this action and has not completed preparation for trial. The following responses by objection are given without prejudice to responding party's right to produce any evidence of any subsequently discovered facts.
Plaintiffss Amended Objections and Responses to Defendant SAVE MART SUPERMARKETS' Request for Admissions, Set One to Plaintiff DARWIN CROSBY
REQUEST FOR ADMISSION NO. 1:
Plaintiff Darwin Crosby is not pursuing a claim under the Family and Medical Leave Act of 1993, 29 U.S.C. section 2601 et seq. in this lawsuit
RESPONSE TO REQUEST FOR ADMISSION NO. 1:
Plaintiff objects to this request on the grounds that it seeks counsel's legal reasoning, theory, or statutory basis supporting a factual contention, ( Say-On-Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1 .) Plaintiff further objects on the ground the request seeks counsel's work product through counsel's thought processes. ( Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810 ; see also Burke v. Superior Court (1969) 71 Cal.2d 276 .) Further, Plaintiff does not waive his right to amend his complaint prior to or during trial under Code of Civil Procedure sections 473(a)(1) and 576. Subject to, and without waiving, said objections, Plaintiff responds as follows:
Denied.
AMENDED RESPONSE TO REQUEST FOR ADMISSION NO. 1:
Admit.
REQUEST FOR ADMISSION NO. 2:
Plaintiff Darwin Crosby is not pursuing a claim under the California Family Rights Act, Government Code section 12945.1 et seq., in this lawsuit.
RESPONSE TO REQUEST FOR ADMISSION NO. 1:
Plaintiff objects to this request on the grounds that it seeks counsel's legal reasoning, theory, or statutory basis supporting a factual contention. ( Sav-On-Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1 .) Plaintiff further objects on the ground the request seeks counsel's work product through counsel's thought processes. ( Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810 ; see also Burke v. Superior Court (1969) 71 Cal.2d 276 .) Further, Plaintiff does not waive his right to amend his complaint prior to or during trial under Code of Civil Procedure sections 473(a)(1) and 576. Subject to, and without waiving, said objections, Plaintiff responds as follows:
Denied.