Opinion
No. C 02-0811 VRW ARB.
June 30, 2003
Shannon Dugan, Law Offices of Shannan Dugan, Attorney for Plaintiff.
Kevin v. Ryan, United States Attorney, Joann M. Swanson, Acting Chief, Patricia J. Kenney, Assistant United States Attorney, Attorneys for United States of America.
SETTLEMENT AGREEMENT AND ORDER OF DISMISSAL
The parties stipulate and agree as follows:
1. Plaintiff is June Falk. Defendant is the United States of America ("United States"). Plaintiff and defendant are hereinafter referred to as the "parties" in this document which is hereinafter referred to as the "Settlement Agreement" or "Agreement."
2. After full and open discussion, the parties agree to resolve any and all claims against defendants as well as against any and all past and present officials, employees and agents of the United States, including the United States Postal Service, which claims were brought or could have been brought in the Complaint filed in this lawsuit, No. C 02-0811 VRW on or about May 31, 2002.
3. The parties agree that the resolution of the lawsuit is based solely on the terms stated in this Settlement Agreement. It is expressly understood that this Agreement has been freely and voluntarily entered into by the parties. The parties further agree that there are no express or implied terms or conditions of settlement, whether oral or written, other than those set forth in this Agreement. This Agreement shall not be modified or supplemented. The parties have entered into this Agreement in lieu of continued protracted litigation and District Court adjudication.
4. This Settlement Agreement is expressly understood by the parties not to be an adjudication of the merits of any factual or legal issue underlying this lawsuit nor is it an adjudication of the merits of any factual or legal issue in those claims which were brought or could have been brought as described in paragraph 2 above. As such, the parties agree that the Settlement Agreement does not constitute an admission that defendants or any past or present official, employee or agent of the United States, including the United States Postal Service, have in any way violated any law, including any statute or regulation.
5. The parties further agree that this Settlement Agreement does not constitute precedent on any legal issue for any purpose whatsoever, including all administrative proceedings and any lawsuits.
6. The parties agree that plaintiff releases and discharges the United States, as well as any past and present officials, employees, agents, attorneys, their successors and assigns, from any and all obligations, damages, liabilities and demands of any kind and nature whatsoever, whether suspected or unsuspected, at law or in equity, known or unknown, arising out of the allegations set forth in plaintiff's Complaint, filed on May 31, 2002 or arising out of claims covered under paragraph 2 above.
7. Plaintiff specifically agrees, as additional consideration for this Settlement Agreement, that this Settlement Agreement shall apply to all unknown or unanticipated injuries and damages resulting from the incident giving rise to this lawsuit as well as to those which are now known.
8. Plaintiff agrees to indemnify the United States for any and all liens, known or unknown, lodged against the settlement agreement in this action.
9. Plaintiff specifically agrees, as additional consideration for this Settlement Agreement, to waive the provisions of Section 1542 of the Civil Code of the State of California, and plaintiff understands that said section provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
10. Plaintiff has been fully advised and understands that the injuries sustained in the incident giving rise to this lawsuit are of such character that the full extent and type of injuries are not known as of the date plaintiff signs this Agreement, and it is further understood that said injuries, whether known or unknown as of the date plaintiff signs the Agreement, might possibly become progressively worse as a result of which plaintiff may sustain further damages. Nevertheless, plaintiff in signing this Agreement fully releases and discharges forever defendant as well as all past and present officials, employees and agents of defendant and of the United States Postal Service. In signing this agreement, plaintiff understands that plaintiff cannot assert any further claims and that each and all of the terms of this Agreement are contractual and not merely a recital.
11. The parties agree that the United States of America will pay plaintiff June Falk ten thousand five hundred dollars ($10,500.00). The parties further agree that the sum of ten thousand five hundred dollars ($10,500.00) will be paid by a check made out to plaintiff June Falk, and her attorney, Shannon Dugan, Law Offices of Shannon Dugan. The United States will provide a check within 120 days of the date the Court enters this Settlement Agreement and Order dismissing the case. Each party is to bear their own costs and attorneys' fees.
12. Under 28 U.S.C. § 2678, plaintiff cannot be required to pay more than 25% of the settlement amount to their attorney in attorney's fees.
13. The parties agree that should any dispute arise with respect to the implementation of the terms of this Settlement Agreement that plaintiff shall not seek to rescind the agreement and pursue their original causes of action, but can apply to the Court, if necessary, for enforcement.
14. Based on the foregoing, the parties agree that the instant action be dismissed.
IT IS SO STIPULATED:
IT IS SO ORDERED PURSUANT TO THE FOREGOING STIPULATION ON THIS DAY OF 30th, June, 2003, AND IT IS FURTHER ORDERED THAT THE CASE BE, AND HEREBY IS, DISMISSED.