Opinion
Case No. C 09-05803 EMC
03-22-2013
RICK DELAGARZA, individually, PAUL GUTIERREZ, SAL LUCIDO, APRIL MOORE, CHARLES GRIMMETT, ANTONIO GARCIA, and BRIAN CASHWELL, individually and on behalf of all similarly situated current and former employees, Plaintiffs, v. TESORO REFINING AND MARKETING COMPANY and DOES 1 through 20, inclusive, Defendants.
Assigned to the Hon. Edward M. Chen
[PROPOSED] ORDER REGARDING
STIPULATION DISMISSING ACTION
FILED BY PLAINTIFF ANTONIO
GARCIA WITHOUT PREJUDICE
[Fed. R. Civ. Pro. Sec. 41 (a)(1)(A)(ii)]
ORDER
Based upon the Joint Stipulation of Plaintiffs Rick Delagarza, Paul Gutierrez, Sal Lucido, April Moore, Charles Grimmett, Antonio Garcia and Brian Cashwell ("Plaintiffs") and Defendant Tesoro Refining and Marketing Company ("Tesoro") (collectively, the "Parties"), the Court hereby orders that:
(1) The above-captioned action filed by Plaintiff Antonio Garcia ("Plaintiff Garcia"), including all of his claims asserted therein, shall be dismissed in its entirety, without prejudice, pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Any and all class claims asserted by Plaintiff Garcia shall not be prejudiced in any way by the voluntary dismissal of his individual claims.
(2) Plaintiff Garcia shall remain a class member in the action, but no longer serve as a class representative, and he shall retain all rights afforded to class members therein, including the right to object to, exclude himself from, and/or participate in any class settlement.
(3) In the event that the Parties' contemplated class action settlement is not preliminarily or finally approved by the Court, Tesoro agrees that it will stipulate to allow Plaintiffs in this action and/or in Burgess et al. v. Tesoro Refining and Marketing Company, USDC Case No. CV 10-cv-05870 DMG (PLAx), pending in the U.S. District Court for the Central District of California, to file an amended complaint adding Plaintiff Garcia as a plaintiff in those actions. The voluntary dismissal of Plaintiff Garcia shall not have any bearing on the merits of Plaintiff Garcia's claims, his adequacy as a class representative, or the class certification orders in this action or Burgess.
(4) Plaintiff Garcia and Tesoro each shall bear their own attorneys' fees and costs.
PURSUANT TO STIPULATION, IT IS SO ORDERED. The Further CMC is reset from 5/9/13 to 9/5/13 at 10:30 a.m.
______________________
HONORABLE EDWARD M. CHEN
CERTIFICATE OF SERVICE
STATE OF CALIFORNIA
ss
COUNTY OF LOS ANGELES
I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Seyfarth Shaw LLP, 333 S. Hope Street, Suite 3900, Los Angeles, California 90071. March 14, 2013, I served the within documents:
[PROPOSED] ORDER REGARDING STIPULATION DISMISSING ACTION
FILED BY PLAINTIFF ANTONIO GARCIA WITHOUT PREJUDICE
[FED. R. CIV. PRO. SEC. 41 (A)(1)(A)(II)]
[ ] I sent such document from facsimile machine (213) 270-9601. I certify that said transmission was completed and that all pages were received and that a report was generated by facsimile machine (213) 270-9601 which confirms said transmission and receipt. I, thereafter, mailed a copy to the interested party(ies) in this action by placing a true copy thereof enclosed in sealed envelope(s) addressed to the parties listed below. [ ] by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth below. [ ] by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. [ ] by placing the document(s) listed above, together with an unsigned copy of this declaration, in a sealed Federal Express envelope with postage paid on account and deposited with Federal Express at Los Angeles, California, addressed as set forth below. [x] electronically by using the Court's ECF/CM System.
Linda S. Fang, Esq.
GILBERT & SACKMAN
3699 Wilshire Blvd., Suite 1200
Los Angeles, California 90010
Telephone: (323) 938-3000
Facsimile: (323) 937-9139
Richard Rouco, Esq.
QUINN, CONNOR, WEAVER
DAVIES & ROUCO LLP
2700 Highway 280, Suite 380
Birmingham, AL 35223
Telephone: (205) 870-9989
Facsimile: (205) 803-4143
I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit.
I declare that I am employed in the office of a member of the bar of this court whose direction the service was made.
Executed on March 14, 2013, at Los Angeles, California.
______________________
Elsa Terre