Opinion
No. C-05-2601-PJH, [Related Action: No. C-05-4800-MJJ], [Fed.R.Civ.P. 41(a)(1)].
December 15, 2005
PILLSBURY WINTHROP SHAW PITTMAN LLP, BRUCE A. ERICSON #76342 ROBERT B. BADER #233165, San Francisco, CA, Attorneys for Defendant and Counterclaimant, CAPITOL BANCORP LTD. and Counterclaimant JOSEPH D. REID.
FRIEDEMANN GOLDBERG LLP, JOHN F. FRIEDEMANN, KYLE M. FISHER, KIMBERLY A. UNTI, Santa Rosa, CA, Attorneys for Plaintiffs and Counterdefendants OWEN PATRICK O'DONNELL, DOUGLAS R. BARNETT, C. PAUL JOHNSON, and GERALD C. VANOLI.
MORRISON FOERSTER, JORDAN ETH, KEVIN CALIA, San Francisco, CA, Attorneys for Counterdefendant, NAPA COMMUNITY BANK.
JOINT STIPULATION TO DISMISS COMPLAINT AND COUNTERCLAIM WITHOUT PREJUDICE AND ORDER
Pursuant to Federal Rule of Civil Procedure 41(a)(1), this Stipulation to Dismiss Complaint and Counterclaim Without Prejudice is entered into between Plaintiffs and Counterdefendants OWEN PATRICK O'DONNELL, DOUGLAS R. BARNETT, C. PAUL JOHNSON AND GERALD C. VANOLI (collectively "Plaintiffs'), Counterdefendant NAPA COMMUNITY BANK ("NCB"), Defendant and Counterclaimant, CAPITOL BANCORP LTD. ("Capitol") and Counterclaimant JOSEPH D. REID ("Reid"), by and through their respective counsel of record, with reference to the following facts:
1. Plaintiffs filed a complaint entitled O'Donnell v. Capitol Bancorp Ltd., No. C-05-2601 (PJH) on June 27, 2005 asserting claims under the Securities Act of 1933 and the Securities Exchange Act of 1934 as well as state-law claims for breach of fiduciary duty and abuse of control (the "Complaint").
2. Capitol answered the Complaint. Capitol and Reid also filed a Counterclaim against Plaintiffs and NCB, seeking a declaration that the Exchange Offer was legal, that the payments made by NCB to Capitol were appropriate, and that Capitol and Reid had not breached any fiduciary duty or abused control (the "Counterclaim").
3. On December 9, 2005 the parties held a meet and confer and agreed to consider dismissing without prejudice the Complaint and the Counterclaim.
4. As a result of the parties' subsequent discussions, they agree to the following: (1) Plaintiffs will dismiss without prejudice the Complaint and (2) Capitol and Reid will dismiss without prejudice the Counterclaim.
5. The parties' agreement to dismiss without prejudice the Complaint and the Counterclaim is subject to the following conditions: (1) if any party to this stipulation refiles a pleading asserting any of the claims alleged in the Complaint or the Counterclaim against any other party to this stipulation, the claims will be filed in this Court if the Court has jurisdiction over the claims and (2) the parties will seek to have the refiled pleadings related to Rubke v. Capitol Bancorp, et al., No. C-05-4800-PJH if that case is then pending before this Court.
IT IS THEREFORE STIPULATED that the Complaint and the Counterclaim are dismissed without prejudice with all parties to bear their own costs and attorneys' fees, subject to the conditions detailed above.
DECLARATION PURSUANT TO GENERAL ORDER 45, § X.B
I, BRUCE A. ERICSON, hereby declare pursuant to General Order 45, § X.B, that I have obtained the concurrence in the filing of this document from the other signatory listed below.I declare under penalty of perjury that the foregoing declaration is true and correct.