Opinion
Case No. 1:09-CV-01184-AWI-SKO
09-30-2011
MONTRY MCNALLY; RUBY BELL; and KENNETH BALES, Plaintiffs, v. EYE DOG FOUNDATION FOR THE BLIND, INC.; EYE DOG FOUNDATION PROFIT SHARING PLAN; GWEN BROWN, an individual, and DOES 1 through 50, Defendants.
McCormick, Barstow, Sheppard, Wayte & Carruth LLP Devon R. McTeer Robert L. Sullivan, Jr. Attorneys for Plaintiffs, MONTRY MCNALLY; RUBY BELL; and KENNETH BALES Ralph E. Harrison II Attorney for Defendants, EYE DOG FOUNDATION FOR THE BLIND, INC.; EYE DOG FOUNDATION PROFIT SHARING PLAN; and GWEN BROWN
Robert L. Sullivan, Jr., # 41711
Devon R. McTeer, #230539
McCormick, Barstow, Sheppard,
Wayte & Carruth LLP
Attorneys for Plaintiffs
MONTRY MCNALLY; RUBY BELL; and
KENNETH BALES
STIPULATION AND ORDER FOR
RELEASE OF FUNDS IN THE EYE DOG
FOUNDATION PROFIT SHARING PLAN
THE PARTIES TO THE ABOVE-CAPTIONED ACTION, BY AND THROUGH THEIR UNDERSIGNED COUNSEL OF RECORD, HEREBY STIPULATE AS FOLLOWS:
1. That on May 4, 2010, Plaintiff MONTRY MCNALLY, RUBY BELL and KENNETH BALES (hereafter collectively referred to as "Plaintiffs") filed a Motion For a Preliminary Injunction with this Court to freeze the assets in the Morgan Stanley accounts relating to the EYE DOG FOUNDATION PROFIT SHARING PLAN (hereafter referred to as the "the PLAN"). By way of their Motion, Plaintiffs asked this Court to enjoin and restrain Defendants EYE DOG FOUNDATION FOR THE BLIND, INC., EYE DOG FOUNDATION PROFIT SHARING PLAN and GWEN BROWN (hereafter collectively referred to as "Defendants") and their officers, agents, employees, representatives, and all persons acting in concert or participating with them, during the pendency of this action, from withdrawing from Morgan Stanley account numbers 238 133040 350 and 238 133040 165, or any other accounts relating to the PLAN.
2. On May 28, 2010, the Court issued an order granting Plaintiffs' Motion for a Preliminary Injunction ordering that a preliminary injunction should be issued to freeze the assets in the Morgan Stanley accounts relating to the PLAN.
3. On September 26, 2011, the parties entered into a settlement agreement after a settlement conference was held before Magistrate Sheila K. Oberto. Pursuant to the settlement, Defendants agreed to distribute to Plaintiffs, who are beneficiaries under the PLAN, the full amount of benefits owed to their sister, Lequita McKay, a participant in the PLAN. As of April 30, 2011, Lequita McKay's total interest in the PLAN was $252,723.35. (Attached hereto as Exhibit "A" is a true and correct copy of a September 28, 2011 fax from Stephanie Copner at Retirement Plan Consultants attaching the Participant Account Statement for Lequita McKay reflecting the total balance of $252,723.35.)
4. Due to the above-referenced settlement agreement, it is now necessary to distribute Lequita McKay's interest in the PLAN to her beneficiaries. The parties hereby agree that, within 30 days from the date in which the Court issues an Order and prior to the unfreezing of the Morgan Stanley accounts at issue, a cashiers check shall be distributed directly from Morgan Stanley to Plaintiffs MONTRY MCNALLY, RUBY BELL and KENNETH BALES in the amount of $252,723.35. Said check will be delivered to Plaintiffs' counsel, in care of Robert L. Sullivan at McCormick, Barstow, Sheppard, Wayte & Carruth at 5 River Park Place East, Fresno, California 93720.
5. After the funds are released directly from Morgan Stanley to Plaintiffs, the remainder of the account which includes the PLAN assets will be unfrozen and the preliminary injunction will be vacated. Until such time as the cashier's check is distributed to Plaintiffs, no funds shall be withdrawn from the Morgan Stanley accounts.
McCormick, Barstow, Sheppard, Wayte & Carruth LLP
Devon R. McTeer
Robert L. Sullivan, Jr.
Attorneys for Plaintiffs, MONTRY
MCNALLY; RUBY BELL; and KENNETH
BALES
Ralph E. Harrison II
Attorney for Defendants, EYE DOG
FOUNDATION FOR THE BLIND, INC.;
EYE DOG FOUNDATION PROFIT
SHARING PLAN; and GWEN BROWN
ORDER
After full consideration of the terms of the stipulation by the parties as set forth above, this Court, being fully advised, and good cause appearing, makes the following order:
It is ordered that, within 30 days of the date of this Order and prior to the unfreezing of the Morgan Stanley accounts at issue, a cashiers check in the amount of $252,723.35, shall be distributed in the name of MONTRY MCNALLY, RUBY BELL, and KENNETH BALES, in care of their attorney Robert L. Sullivan at the law offices of McCormick, Barstow, Sheppard, Wayte & Carruth, located at 5 River Park Place East, Fresno, California 93720. After the funds are released from Morgan Stanley to Plaintiffs, the preliminary injunction will be vacated and the remainder of the account will be unfrozen. Until such time as the cashier's check is distributed to Plaintiffs, no funds shall be withdrawn from the Morgan Stanley accounts.
IT IS SO ORDERED.
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CHIEF UNITED STATES DISTRICT JUDGE