Opinion
Case No.: CV 11-0651 PJH
10-07-2011
BENJAMIN PHILIP CANNON, Plaintiff, v. COUNTY OF PETALUMA, et al., Defendants.
BRUCE D. GOLDSTEIN, Sonoma County Counsel By: Anne L. Keck Attorneys for Sonoma Defendants BENJAMIN PHILLIP CANNON By: Benjamin Philip Cannon Plaintiff in pro per MYERS, NAVE, RIBACK, SILVER & WILSON By: Kimberly M. Drake Attorneys for Petaluma Defendants
BRUCE D. GOLDSTEIN #135970
County Counsel
ANNE L. KECK #136315
Deputy County Counsel
County of Sonoma
RICHARD W. OSMAN #167993
BERTRAND, FOX & ELLIOT
The Waterfront Building
Attorneys for Sonoma Defendants
STIPULATION TO MODIFY COURT ORDER TO EXTEND TIMES FOR FILING
AMENDED COMPLAINT AND RESPONSES; [PROPOSED] MODIFIED ORDER
This joint stipulation and request for entry of a modified order is made pursuant to Civil Local Rule 7-12 by and between the following groups of parties: Plaintiff in pro per, Benjamin Philip Cannon ("Plaintiff"); the "Sonoma Defendants," consisting of the County of Sonoma (including the Sonoma County Sheriff's Office), the City of Sonoma (including the Sonoma Police Department), former Sonoma County Sheriff-Coroner William Cogbill, Sonoma County Sheriff's Deputies James Naugle, Christopher Spallino, Eric Haufler, Jesse Hanshew, Shawn Murphy, and Perry Sparkman, former Sonoma County District Attorney Stephan Passalacqua, and Sonoma County Deputy District Attorneys James Casey and Robert Waner; and the "Petaluma Defendants," consisting of the City of Petaluma (erroneously sued as Petaluma Police Department), and Petaluma Police Department members Dan Fish, John Silva, Bert Walker, and Jason Jucutan.
Through this stipulation, these parties request the Court to modify Paragraph No. 10 of its "Order re Motions to Dismiss or for More Definite Statement; Order re Motions to Strike," filed on September 15, 2011 (hereinafter, the "September 15th Order," Dkt. No. 82), for the sole purpose of providing Plaintiff an additional week in which to file his amended complaint, through October 12, 2011, and concomitantly extending the time for Defendants to respond to that amended complaint through November 2, 2011, based on the following.
RECITALS
A. In response to Defendants' motions to dismiss, in its September 15th Order this Court dismissed several of Plaintiff's claims alleged in his First Amended Complaint with prejudice, and granted Plaintiff leave to amend the remaining claims through filing a second amended complaint.
B. The September 15th Order also expressly ordered Plaintiff to file any second amended complaint no later than October 5, 2011, and ordered Defendants to file any answers or motions to dismiss in response to such second amended complaint no later than October 26, 2011. [Dkt. No. 82, ¶ 10.]
C. Plaintiff prepared a draft of his proposed second amended complaint and, at defense counsel's suggestions, provided an advance copy to defense counsel. On October 5, 2011, defense counsel expressed concerns regarding several allegations and claims made in the draft second amended complaint. Based on information provided by defense counsel and resulting conversations, Plaintiff has agreed to substantially revise his draft second amended complaint by removing certain allegations and claims from his draft before filing his second amended complaint with the Court, but needs additional time in which to do so.
D. Counsel for Sonoma Defendants and Petaluma Defendants have agreed to provide Plaintiff with an additional week to substantively revise his draft second amended complaint to remove certain allegations and claims, which will permit him to file it no later than October 12, 2011. Defendants' counsel believes that good cause exists for such extension of time, as it will provide Plaintiff the opportunity to further limit the allegations and claims he intends to make in his second amended complaint. However, based on conversations with Plaintiff to date, Defendants' counsel do not believe that Plaintiff's intended revisions to his draft second amended complaint will satisfy FRCP Rule 8 pleading standards. Accordingly, Sonoma Defendants and Petaluma Defendants at the present time intend to file motions to dismiss in response to the proposed second amended complaint even if modified as Plaintiff now intends.
E. To permit Defendants' counsel time in which to review the second amended complaint that is filed and prepare their responses, Plaintiff has agreed to concomitantly extend the time for filing such responses for one week through November 2, 2011.
WHEREFORE, the parties to this stipulation hereby agree and request entry of an order modifying Paragraph 10 of this Court's September 15th Order (Dkt. No. 82) as follows:
STIPULATION
1. It is requested that Plaintiff be permitted to file his second amended complaint no later than October 12, 2011.
2. It is requested that Sonoma Defendants and Petaluma Defendants be permitted to file their responses (including but not limited to answers and motions to dismiss) no later than November 2, 2011.
3. This stipulation does not prevent or preclude the parties from seeking additional relief from this Court, to amend this stipulation and order or otherwise.
Respectfully submitted,
BRUCE D. GOLDSTEIN, Sonoma County Counsel
By: Anne L. Keck
Attorneys for Sonoma Defendants
BENJAMIN PHILLIP CANNON
By: Benjamin Philip Cannon
Plaintiff in pro per
MYERS, NAVE, RIBACK, SILVER & WILSON
By: Kimberly M. Drake
Attorneys for Petaluma Defendants
[PROPOSED] MODIFIED ORDER
PURSUANT TO STIPULATION, and with good cause appearing,
IT IS HEREBY ORDERED that Paragraph No. 10 of this Court's "Order re Motions to Dismiss or for More Definite Statement; Order re Motions to Strike," filed on September 15, 2011 (Dkt. No. 82), is hereby modified to permit Plaintiff to file his second amended complaint no later than October 12, 2011, and to permit Defendants to file their responses to the second amended complaint no later than November 2, 2011. All other terms and provisions of the Court's Order shall remain in full force and effect.
HONORABLE PHYLLIS J. HAMILTON
United States District Judge
ELECTRONIC CASE FILING ATTESTATION
I, Anne L. Keck, am the ECF user whose identification and password are being used to file this STIPULATION TO MODIFY COURT ORDER TO EXTEND TIMES FOR FILING AMENDED COMPLAINT AND RESPONSES; [PROPOSED] MODIFIED ORDER on behalf of Plaintiff, Sonoma Defendants and Petaluma Defendants pursuant to Civil Local Rule 7-12. In compliance with General Order No. 45(X)(B), I hereby attest that the concurrence in the filing of this document has been obtained from its signatories.
By: Anne L. Keck
Attorney for Sonoma Defendants
CERTIFICATE OF SERVICE
I am employed in the County of Sonoma, California; I am over the age of 18 years and not a party to the within action; my business address is 575 Administration Dr., Rm. 105A, Santa Rosa, California. I am readily familiar with my employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service.
On October 5, 2011, I served the following document in said cause,
STIPULATION TO MODIFY COURT ORDER TO EXTEND TIMES FOR FILING AMENDED COMPLAINT AND RESPONSES; [PROPOSED] MODIFIED ORDER
on the following interested parties:
Benjamin Philip Cannon 1083 Vine Street #215
Healdsburg, CA 95448
Said service was performed in the following manner:
√ BY U.S. POSTAL SERVICE (Mail): I placed each such document in a sealed envelope addressed at noted above, with first-class mail postage thereon fully prepaid, for collection and mailing at Santa Rosa, California, following the above-stated business practice, on this date.
Executed October 5, 2011, at Santa Rosa, California.
Renee Cahoon