Opinion
STIPULATION AND [PROPOSED] ORDER TO WITHDRAW DEFENDANTS' 12(B)(6) MOTION TO DISMISS OR IN THE ALTERNATIVE 12(E) MOTION FOR MORE DEFINITE STATEMENT PURSUANT TO FRCP RULE 15, DISMISS PLAINTIFF'S FEDERAL CLAIMS, AND REMAND ENTIRE CASE TO FRESNO COUNTY SUPERIOR COURT PURSUANT TO 28 U.S.C. §1447(C)
TROY L. NUNLEY, District Judge.
WHEREAS, Defendants JIM'S TOWING SERVICE, INC., dba JIM'S TRUCK REPAIR and JON EWERT have filed a Rule 12 (b)(6) motion to dismiss the entire case, or in the alternative, a Rule 12(E) Motion for More Definite Statement Pursuant to Rule 15, which motion was originally scheduled to be heard on August 14, 2015; and
WHEREAS, the Parties previously stipulated and the Court entered its order that the hearing on said motion would be continued to September 18, 2015; and
WHEREAS, the Parties previously stipulated and the Court entered its order that the hearing on said motion would be continued to November 5, 2015; and
WHEREAS, Plaintiff ALAIN DUNN, who was previously in pro per, has retained Attorney Dean B. Gordon to represent him in the within action; and
WHEREAS, the parties, through their counsel, have met and conferred regarding Defendants' pending motion; and
WHEREAS, Plaintiff hereby dismisses with prejudice his Third Cause of Action for violation of the ADEA, which is the sole basis for federal jurisdiction of this matter, in exchange for a waiver of fees and costs; and
WHEREAS, Plaintiff hereby dismisses with prejudice all claims against Defendant JIM EWERT as an individual, in exchange for a waiver of fees and costs; and
THEREFORE, the Parties jointly request that the Court order Defendants' Rule 12(b)(6) Motion to Dismiss and their alternative 12(e) motion be withdrawn, all scheduled dates be vacated, and that the entire case be remanded to the Fresno County Superior Court pursuant to 28 U.S.C. §1447(c) so that Plaintiff may file his Second Amended Complaint therein.
ORDER
GOOD CAUSE appearing based upon the Stipulation of the Parties;
IT IS HEREBY ORDERED that:
DEAN B. GORDON, LAW OFFICE OF DEAN B. GORDON, Fresno, CA, Attorney for Plaintiff ALAIN DUNN.
T. SCOTT BELDEN, T. TODD EGLAND, BELDEN BLAINE RAYTIS, LLP, Bakersfield, California, Attorneys for Defendants JIM'S TOWING SERVICE, INC. dba JIM'S TRUCK REPAIR; and JON EWERT.
1. Plaintiff's Third Cause of Action for violation of the ADEA is dismissed with prejudice in exchange for Defendants' waiver of fees and costs.
2. All of Plaintiff's claims against Jim Ewert as an individual are dismissed with prejudice in exchange for Defendants' waiver of fees and costs.
3. Defendants' Rule 12(b)(6) Motion to Dismiss and their alternative 12(e) motion are withdrawn.
4. All scheduled dates are vacated.
5. The entire case is remanded to the Fresno County Superior Court pursuant to 28 U.S.C. §1447(c), so that Plaintiff may file his Second Amended Complaint therein.
IT IS SO ORDERED.