Opinion
Case No. 04CV1074W(JMA).
September 28, 2005
LAURA B. RIESENBERG, PROCOPIO, CORY HARGRAVES SAVITCH, LLP, Attorney for Plaintiff.
Michael F. Armstrong, ARMSTRONG ARMSTRONG, A.P.L.C., John M. Stanley, LAW OFFICE OF JOHN M. STANLEY, San Diego, CA, Attorneys for Defendant, DOROTHY J. SMITH, ELIZABETH STANLEY MONROY.
STIPULATION FOR SETTLEMENT, DISMISSAL OF CASE AND ORDER THEREON
IT IS HEREBY STIPULATED AND AGREED by plaintiff, BENEFITS COMMITTEE OF THE PENSION PLAN OF GENERAL ATOMICS and of the GENERAL ATOMICS 401(K) RETIREMENT PLAN ("Plaintiff") and Defendants ELIZABETH STANLEY MONROY ("Monroy") and DOROTHY J. SMITH ("Smith"), and each of them, as follows:
RECITALS
WHEREAS General Atomics is the sponsor of the General Atomics 401(k) Retirement Savings Plan ("401(k) Plan") and the Pension Plan of General Atomics ("Pension Plan").AND WHEREAS Plaintiff is the administrator of the 401(k) Plan and the Pension Plan;
AND WHEREAS during the course of his employment with General Atomics, John Burnell Gish ("Participant") participated in the 401(k) Plan and the Pension Plan. During the course of his participation in the 401(k) Plan and the Pension Plan, Participant accrued certain vested interests in such plans ("vested interests"). The participant died on March 18, 2004 in San Diego County, California.
AND WHEREAS Monroy and Smith each have claimed an interest in Participant's vested interests in the 401(k) Plan and the Pension Plan ("Claims").
AND WHEREAS by reason of the conflicting claims of Monroy and Smith, pursuant to Fed.R.Civ.P. Rule 22, the Plaintiff filed a Complaint in Interpleader on May 27, 2004 naming Monroy and Smith as defendants;
AND WHEREAS Plaintiff was discharged from this action by Stipulation of Discharge and Order ("Stipulation of Discharge and Order"), filed November 22, 2004;
AND WHEREAS Monroy and Smith desire to settle and resolve the dispute between them with respect to their claims as set forth in this action;
AND WHEREAS Monroy and Smith represent and warrant that they are presently the sole and exclusive owners of their respective claims, demands, causes of action, controversies, obligations, or liabilities as between each other as set forth in the action and that there has been no assignment, transfer, consignment, or other disposition by Monroy or Smith of any said causes of action or other matters referred to herein.
THEREFORE in consideration of the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Monroy and Smith have agreed to a settlement relating to the distribution of the benefits from the Pension Plan and the 401(k) Plan pursuant to a Court order approving the settlement of the parties. Monroy and Smith agree that Monroy will receive a total distribution of forty-seven thousand five hundred dollars ($47,500.00) and Smith will receive a distribution of the balance of the Participant's accrued vested interest in the 401(k) Plan. Monroy and Smith further agree that Smith will receive the total distribution of Participant's accrued vested interest in the Pension Plan.
2. The parties understand and believe that Participant's accrued vested interest in the 401(k) Plan is approximately $197,141.98 and Participant's accrued vested interest in the Pension Plan is estimated to be $68,572.02 with a benefit commencement date of August 1, 2005. The parties hereby stipulate and agree to a benefit commencement date of October 1, 2005. Distributions of Participant's accrued vested interests in the 401(k) Plan and Pension Plan, as described in paragraph one (1) above, will be made as soon as practicable thereafter.
3. The Stipulation of Discharge and Order provides, among other things, that plaintiff recover its attorneys' fees and court costs from the participant's vested interests in the 401(k) Plan and Pension Plan, to be determined upon distribution of the vested interests pursuant to this court's order. The Parties stipulate and agree that Plaintiff shall receive a total payment of seven thousand dollars ($7,000.00), constituting such payment for attorney's fees and costs. Monroy and Smith agree that such payment shall be made by Smith in the form of a certified check made payable to General Atomics and delivered to Plaintiff's counsel within three (3) business days following Plaintiff's payments to Smith, as described in paragraph one (1) above.
4. The parties further stipulate and agree that U.S. Magistrate Judge Jan M. Adler shall retain jurisdiction over this action pending the filing and approval of the settlement documents and payment of monies to Monroy and Smith and payment by Smith of attorneys' fees and costs to Plaintiff.
MUTUAL RELEASE PROVISIONS
5. Monroy's Release of Smith: In consideration respectively of the agreements referred to herein, Monroy, for herself and for all of her agents, subagents, servants, employees, predecessors, partners, partnerships, joint venturers, successors, assigns, assignors, spouses, other representatives, and all others claiming by or through MONROY and any of them, does hereby fully and finally release, acquit, and discharge, in the broadest possible manner and to the fullest extent permitted by law, SMITH and any and all of her attorneys, agents, subagents, servants, employees, partners, partnerships, joint venturers, successors, predecessors, assigns, assignors, and all other persons and entities in any manner related to or affiliated with her or them, from any and all actions, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, liabilities, and demands of whatsoever character, nature, and kind, known or unknown, suspected or unsuspected, arising out events, facts or circumstances that occurred before the execution by Monroy and Smith of this Stipulation for Settlement, including but not limited to those in any way related to this litigation, and claims, actions and causes of action arising out of or in any way related to this litigation, other than as may arise out of or relate to a breach of this Agreement.
6. Smith's Release of Monroy: In consideration respectively of the agreements referred to in herein, SMITH, for herself and for all of her agents, subagents, servants, employees, predecessors, partners, partnerships, joint venturers, successors, assigns, assignors, spouses, other representatives, and all other claiming by or through them and any of them, dos hereby fully and finally release, acquit, and discharge, in the broadest possible manner and to the fullest extent permitted by law, MONROY and any and all of her attorneys, agents, subagents, servants, employees, partners, partnerships, joint venturers, successors, predecessors, assigns, assignors, and all other persons and entities in any manner related to or affiliated with her or them, from any and all actions, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, liabilities, and demands of whatsoever character, nature and kind, known or unknown, suspected or unsuspected, arising out of events, facts or circumstances that occurred before the execution by Monroy and Smith of this Stipulation for Settlement, including but not limited to those in any way related to this litigation, other than as may arise out of or relate to a breach of this Agreement.
7. Waiver of Civil Code Section 1542: It is the intention of Monroy and Smith that the foregoing mutual releases shall be effective as a bar to all actions, causes of action, obligations, costs, expenses, attorneys' fees, damages, losses, claims, liabilities, and demands of whatsoever character, nature and kind, known or unknown, suspected or unsuspected, hereinabove specified to be so barred. In furtherance of this intention, Monroy and Smith expressly waive any and all rights and benefits conferred upon them by the provisions of section 1542 of the California Civil Code, which provides as follows:
A general release does not extend to claims that 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.
8. Monroy and Smith acknowledge that the foregoing waiver of the provisions of section 1542 of the California Civil Code was separately bargained for. Monroy and Smith expressly consent that this Release shall be given full force and effect in accordance with each and all of its expressed terms and provisions, relating to unknown and unsuspected claims, demands, causes of action, if any, to the same effect as those terms and provisions relating to any other claims, demands, and causes of action herein above specified.
9. Attorneys' Fees: Should any Party to this Stipulation for Settlement reasonably retain counsel for the purpose of interpreting, enforcing or preventing the breach of any provision hereof, including but not limited to the institution of an action or proceeding to enforce any provision hereof, for a declaration of such Party's rights or obligations hereunder or for any other judicial remedy, then if said matter is settled by judicial determination, the prevailing party shall be entitled to be reimbursed by the losing party for all costs and expenses incurred thereby, including but not limited to reasonable attorney's fees for the services rendered to such prevailing party.
10. Dismissal Of Complaint: The Parties hereto shall file a stipulation for dismissal of the action pursuant to Fed.R.Civ.P. Rule 43.
11. Litigation Costs: Other than as set forth herein, the Parties shall bear their own litigation costs and attorneys' fees.
12. Advice Of Counsel: The Parties hereto represent that they have been represented by counsel in respect to the preparation and execution of this Stipulation for Settlement.
13. Agreement Supersedes Other Agreements: With the exception of the Stipulation of Discharge and Order, this Stipulation for Settlement supersedes all prior agreements or understandings, whether written or oral, of the parties hereto relating to the subject matter hereof and incorporates the entire understanding of the Parties with respect thereto. In the event of uncertainty in the terms of this Stipulation for Settlement, such uncertainty shall be resolved fairly and in accordance with the intent of the Parties as set forth herein, and without regard as to which Party caused the uncertainty to exist.
14. Further Assurances: The Parties hereby agree to execute such other documents and to take such other action as may reasonably be necessary to further the purpose of this Agreement.
15. Entire Agreement and Successors-in-Interest: This Stipulation for Settlement contains the entire agreement between the parties with regard to the matters set forth in it and shall be binding upon and inure to the benefit of the executors, administrators, personal representatives, heirs, successors and assigns of each.
ORDER
Upon reading the foregoing Stipulation for Settlement, Dismissal of Case signed by the Parties hereto, and good cause among therefrom;IT IS SO ORDERED.