Opinion
Case No.: C 11-04221 WHA
11-18-2011
BARRY WHITE, JR. and DEMITRIUS ANDERSON, Plaintiffs, v. CITY OF ANTIOCH, JAMES HYDE, Chief of Police, Antioch Police Department, in his official and individual capacities; ALLAN CANTANDO, Chief of Police, Antioch Police Department, in his official and individual capacities; OFFICER NICHOLAS CUEVAS (#3920), OFFICER CHRIS WALTERS (#3489), CORPORAL MIKE HULSEY (#2356), CORPORAL KELLY OUIMET (#2031), LIEUTENANT LEONARD ORMAN (#1878), OFFICER MIKE MELLONE (#4323), DOES 1 through 25, in their official and individual capacities, Defendants.
JIVAKA CANDAPPA, (SBN 225919) Attorney for Plaintiffs BARRY WHITE, JR., and DEMITRIUS ANDERSON LAW OFFICE OF JIVAKA CANDAPPA Jivaka Candappa, Attorney for Plaintiffs, BARRY WHITE, JR. and DEMITRIUS ANDERSON MCNAMARA, NEY, BEATTY, SLATTERY, BORGES & BROTHERS LLP James V. Fitzgerald, III Noah G. Blechman Attorneys for Defendants THE CITY OF ANTIOCH, et al.
JIVAKA CANDAPPA, (SBN 225919)
Attorney for Plaintiffs BARRY WHITE, JR., and DEMITRIUS ANDERSON
STIPULATION AND [PORPOSED] ORDER TO STAY PROCEEDINGS PENDING RESOLUTION OF CRIMINAL PROSECUTIONS
Plaintiffs Barry White, Jr. and Demitrius Anderson, and Defendants City of Antioch, James Hyde, Allan Cantando, Nicholas Cuevas, Chris Walters, Mike Hulsey, Kelly Ouimet, Leonard Orman, and Mike Mellone, by and through their respective attorneys of record, hereby stipulate to the following:
1. WHEREAS Plaintiffs filed a civil rights complaint in the United Stated District Court in the Northern District of California on August 26, 2011, arising out of an incident relating to the arrests of Plaintiffs by officers of the Antioch Police Department on August 29, 2009;
2. WHEREAS the Contra Costa County District Attorney's Office initiated criminal proceedings against both Plaintiffs on or about May 24, 2010, in connection with the incident relating to the arrests of Plaintiffs on August 29, 2009;
3. WHEREAS Plaintiff Barry White, Jr. is charged with the following felonies related to that arrest: assault with a deadly weapon upon a peace officer, resisting an executive officer and a firearm enhancement;
4. WHEREAS Plaintiff Demitrius Anderson is charged with the following misdemeanor related to that arrest: delaying, obstructing or resisting a peace officer;
5. WHEREAS Plaintiff Barry White's preliminary hearing in connection with the criminal charges alleged against him is scheduled to be completed on November 18, 2011;
6. WHEREAS Plaintiff Demitrius Anderson's jury trial relating to the criminal charge alleged against him is scheduled to begin on January 23, 2012;
7. WHEREAS Plaintiffs intend to invoke their rights pursuant to the Fifth Amendment of the United States Constitution in this civil action until the termination of the criminal prosecutions against them;
8. WHEREAS the success of some or all of the claims against the Defendants in this civil case may turn on the outcome of the criminal prosecutions against Plaintiffs;
9. WHEREAS Plaintiffs' claims against Defendants in this civil matter may be limited and/or barred should either of the Plaintiffs suffer convictions in relation to these pending criminal proceedings;
10. WHEREAS there are many overlapping and intertwined issues between the criminal and civil cases involving the Plaintiffs and going forward on the civil case while the criminal cases are still pending could lead to inconsistent rulings and/or verdicts.
11. WHEREFORE, the parties, by and through their respective counsel, respectfully seek an Order of the Court to:
a. stay this case until further Order of the Court,
b. grant Defendants an extension of time to file a responsive pleading, such pleading to be filed no later than 20 days after the filing of an order lifting the stay in this action,
c. vacate the current Scheduling Order in this case including the December 8th Case Management Conference, and
d. set this matter for a case management conference during the week of February 20, 2012, per the availability of the Court.
IT IS SO STIPULATED
LAW OFFICE OF JIVAKA CANDAPPA
Jivaka Candappa, Attorney for Plaintiffs,
BARRY WHITE, JR. and DEMITRIUS ANDERSON
MCNAMARA, NEY, BEATTY, SLATTERY,
BORGES & BROTHERS LLP
James V. Fitzgerald, III
Noah G. Blechman
Attorneys for Defendants
THE CITY OF ANTIOCH, et al.
ORDER
Pursuant to the parties' stipulation and on a showing of good cause, this case is stayed in all respects until further Order of the Court. Defendants shall file a responsive pleading no later than 20 days after the filing of an Order lifting the stay in this matter. The current Scheduling Order in this case, including the December 8th Case Management Conference, is hereby vacated, and the matter is set for a Case Management Conference on February 23 , 2012 The parties shall file a joint Case Management Conference statement no later than one week prior to the hearing.
IT IS SO ORDERED.
HONORABLE WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE