Opinion
Marjorie E. Manning, SBN 118643, BOLLING & GAWTHROP, A Professional Corporation, Sacramento, California, Attorneys for Defendants County of Mono, Ralph Obenberger and David O'Hara.
Christopher L. Gaspard, SBN 275763, GASPARD CASTILLO WINTER HARPER, APC, Ontario, California, Attorneys for Plaintiff.
STIPULATION RE WITHDRAWAL OF FILED PROOFS OF SERVICE, AGREEMENT TO ACCEPT SERVICE OF FIRST AMENDED COMPLAINT, AND CONTINUANCE OF HEARING ON DEFENDANT OBENBERGER'S MOTION TO DISMISS; ORDER
MORRISON C. ENGLAND, Jr., Chief District Judge.
The parties hereto, by and through their attorneys of record, hereby stipulate as follows:
1. On November 18, 2013, counsel for plaintiff filed proofs of service in this action dated September 5, 2013 which state that defendants County of Mono ("County"), David O'Hara ("O'Hara") and Ralph Obenberger ("Obenberger") were served with summons by substitute service on August 28, 2013.
2. Counsel for County, O'Hara and Obenberger disputes that any of said defendants was properly served. Obenberger voluntarily appeared in the action and filed a motion to dismiss the original complaint, which motion was rendered moot when plaintiff filed a first amended complaint ("FAC"). Thereafter, Obenberger filed a motion to dismiss the FAC which is scheduled for hearing on December 5, 2013 at 2:00 p.m.
3. No defendant other than Obenberger has been served with the FAC and no defendant other than Obenberger previously appeared in this action.
4. Subsequent to the filing of the FAC and the proofs of service referenced above, counsel for plaintiff and counsel for defendants conferred and discussed the validity of service and the possibility of resolving informally their dispute in connection therewith. As a result, counsel for the parties agreed to issuance of an order consistent with the terms set forth in paragraphs 5 through 7 below.
5. Plaintiff agrees to withdraw the proofs of service filed November 18, 2013 which address service on the County, O'Hara and Obenberger.
6. Bolling & Gawthrop agrees to accept service of summons and the FAC on behalf of defendants County and O'Hara effective November 22, 2013, and further agrees that the response(s) of said defendants to the FAC will be filed on or before January 21, 2014.
7. Bolling & Gawthrop has agreed to continue, to February 20, 2014, hearing on Obenberger's motion to dismiss the FAC, and further agrees that if a motion to dismiss or similar pleading challenge is filed on behalf of County and/or O'Hara, said motion(s) will be set for hearing on the same day as the Obenberger motion.
ORDER
Pursuant to the above stipulation, IT IS HEREBY ORDERED THAT:
1. The proofs of service filed November 18, 2013, addressing service on the County, O'Hara, and Obenberger, are withdrawn by Plaintiff;
2. Bolling and Gawthrop accepts service of summons and the FAC on behalf of Defendant County and O'Hara effective November 22, 2013, and shall respond to the FAC on behalf of said Defendant on or before January 21, 2014;
3. The hearing on the Defendant Obenberger's Motion to Dismiss, ECF No. 12, is continued to February 20, 2013, and if a motion to dismiss or similar pleading challenge is filed on behalf of Defendants County and/or O'Hara, said motion will be set for hearing on the same day as the Obenberger motion; and
4. The Court's December 2, 2013, minute order submitting Obenberger's Motion to Dismiss on the briefs is HEREBY VACATED.
IT IS SO ORDERED.